It is in the best interests of the children of separating parents that the parents reach agreement as to their ongoing care.
Separating parents may reach agreement in relation to the care arrangements for the children by way of:
- an informal, unwritten agreement;
- a written, signed and dated Parenting Plan; and
- Parenting Orders made by the Family Court.
In deciding which of these approaches is best for the children it is necessary to consider the differences.
An informal, unwritten agreement will work well for separated parents in limited circumstances where the parent/s:
- communicate well;
- do not undermine the parenting of the other parent;
- actively encourage the relationship between the children, the other parent and their extended family; and
- otherwise agree on all aspects of parenting.
A Parenting Plan is a written, signed and dated agreement made between separating parents in relation to:
the care arrangements for the children, including with whom they live and the time the children are to spend with the other parent and/or another person;
the decision making to be made by a parent and/or another person;
the communication a child is to enjoy with another person;
agreement on the method of discipline of the children;
how to facilitate future discussions about the care arrangements for, or issues in relation to, the children; and
the process to be used in resolving disputes about the terms of the Parenting Plan.
A Parenting Plan may be a good option for parents who;
- work well together and are able to resolve their own issues;
- trust one another with the ongoing arrangements for the children; and
- are seeking a large element of flexibility with these arrangements.
Unfortunately, this is not the case in a large portion of cases.
While Parenting Plans are flexible and are ideal for parents who get along well, they are not legally enforceable.
What must be included in a Parenting Plan?
Section 63C(2) of the Family Law Act 1975 (Cth) (the Act) sets out the requirements for a Parenting Plan, as follows:
- The Parenting Plan must be in writing;
- The Parenting Plan must be signed by all parties;
- The Parenting Plan must be dated;
- The Parenting Plan must not be made under any coercion, threat or duress – in other words, both parents must be in agreement and freely enter into that agreement.
- The Parenting Plan must include provisions for one or more of the following:
- Who the child will live with;
- Who the child will spend time with;
- Whether the parents have equal shared parental responsibility for the child, or whether one parent will hold that responsibility solely;
- What type and form consultations will take between the people with shared parental responsibility;
- Arrangements for communication between the child and another person or other persons (whether by telephone, letter, email or any other electronic means);
- Maintenance of the child;
- process used for resolving disputes about the terms or operation of the plan;
- the process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties of the plan;
- any aspect of the care, welfare, development of the child or any other aspect of parental responsibility.
Parenting Orders versus Parenting Plans
If you decide to enter into a Parenting Plan the first issue you must be aware of is that Parenting Plans are not enforceable by the Family Court. However,
If there is a signed and dated Parenting Plan in place and proceedings are later issued in the Family Court, the Court is required to have regard to the terms of the most recent Parenting Plan signed by the parents if it is in the best interests of the child for the Court to do so.
The terms of the Parenting Plan will override the Parenting Orders to the extent the terms are inconsistent. An exception applies if it can be shown the Parenting Plan was signed by a parent under duress, coercion or threat.
Care must be taken to obtain independent family law advice prior to signing a Parenting Plan. A Parenting Plan might have some future influence on a Judge if the matter were to proceed to a trial before the Family Court.
It is important that separating parents obtain independent legal advice prior to signing a Parenting Plan, both before or after Parenting Orders have been made by the Family Court.
The flexibility afforded by Parenting Plans must be weighed against the legal enforceability of Parenting Orders. Whichever avenue is elected, the importance of obtaining independent specialist legal advice remains.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.