Family Law Parenting Orders – are they really necessary?

Posted by Luisa-Maria Maroun on 16 October 2014

Is it necessary to obtain court orders to resolve parenting disputes?

Commonly, parents have a mistaken belief that the only way to resolve parenting disputes is to commence court proceedings to obtain final parenting orders. Little do they know that there are alternative options to litigation which can be just as effective. Such options include parties reaching an agreement through private discussions, or with the assistance of lawyers or family dispute resolution practitioners, also referred to as mediators.

Agreements can be reflected in writing via court orders or alternatively, in the form of a parenting plan which is often a cheaper option. Although a parenting plan does not have the same binding effect as a court order, it definitely has standing in court proceedings, as it represents the intentions of the parties at the time that it was entered into. It also deals with the same issues that the court would generally be asked to make orders about in family law proceedings. A parenting plan can often be a practical solution which provides flexibility, catering for changes in the future circumstances of both parents and children.

Given the non-binding nature of parenting plans, many clients are sceptical about using them and tend to favour court orders instead, as it is assumed that parties will comply with orders and will be more likely to breach the parenting plan. This is not necessarily the case, as there is no guarantee that a party will comply with the court orders. The difference between not complying with a parenting plan and not complying with a court order is that, for a parenting plan a party must then commence proceedings to seek relief from the breach. However, in cases where there is non-compliance with respect to an order of the court; the parties can seek immediate formal relief by filing a contravention application with court.

Despite the fact that court orders have more of a footing and are formally binding upon parties, they are not necessarily easy to change. The Court is reluctant to alter existing orders unless there are exceptional circumstances which warrant a change to the care arrangements already in place. This can be a costly exercise as it may involve the commencement of Court proceedings, which in itself can be a time consuming and costly process.

If you are currently experiencing a relationship breakdown and envisage parenting issues will arise, it is important to explore your options carefully and consult with a legal practitioner regarding the best solution to cater to your circumstances. We invite you to contact our office to seek advice from our experienced solicitors who will be able to assist to in reaching an outcome which is in the best interest of your children.