Consultation Paper on Alternative Dispute Resolution - Law Reform ...

the provisions of the plan became legally enforceable once the parenting plan
was registered and were enforceable as if they were court orders. An
unregistered parenting plan had no such effect.
5.24 A parenting plan became registered in a court after scrutiny by that
court. To be registered, an application was made to the court accompanied by a
copy of the plan together with either a certificate of independent legal advice or
a certificate that the plan was developed after consultation with a child and
family counsellor. The court may have registered the plan if it considered it
appropriate to do so having regard to the best interests of the child to which the
plan relates. A parenting plan may have been set aside where: it has been
obtained by fraud, duress or undue influence; the parties wish it to be set aside;
or it is in the child's best interests for it to be set aside. 28
5.25 Statistics kept by the Family Court of Australia indicate that there was
limited use of the registration provisions introduced by the 1995 Act. For
example, in 1998-99 there were a total of 395 applications to register parenting
plans in the Family Court of Australia. In the same period, 320 plans were
registered and there were 5 revocations of previously registered parenting
plans. By contrast, there were 15,553 consent orders sought during 1998-99. 29
It has been suggested that a major reason for the diminishing use of parenting
plans was that lawyers and the court were not encouraging parents to register
their parenting plans because of: the costs involved; the complexities
associated with amending registered parenting plans (revocation by further
agreement); and an appreciation that the registration of parenting plans is
contrary to the intention that they should be a flexible alternative to court
adjudication. 30
5.26 Arising from this, further changes were made by the Family Law
Amendment (Shared Responsibility) Act 2006. As a result a plan is not legally
enforceable but parents can have their parenting plans made into 'consent
orders'. Consent orders are orders made by the court, with the agreement of
both parents, and have the same legal force as other court orders.
5.27 The 2006 Act amended the obligations of advisers (that is, legal
practitioners, family counsellors, family dispute resolution practitioners and
28 Section 63H of the 1975 Act, as amended by the 1995 Act.
29 Letter of Advice to the Attorney-General on Parenting Plans Part 3 (Family Law
Council of Australia and the National Alternative Dispute Resolution Advisory
Council of Australia, March 2000). Available at
http://www.ag.gov.au/agd/www/Flchome.nsf/Page/23060A7517DA516ECA256B4
3007E4AB7?OpenDocument.
30 Ibid.
170