Our article “Family Law: Formalising Agreements reached between the parties by Deeds of Settlement & Court Orders”, discussed the many different ways parties in a Family Law dispute are able to finalise their agreement. One option for parenting matters is for parents to enter into a Family Parenting Plan.
What is a Parenting Plan?
Family Law Parenting Plans are written, signed and dated agreements between separated parents that deal with parenting matters. These agreements are as individual as the family involved and there is no “standard” parenting arrangement.
Parenting arrangements could include a number of issues such as:
- Where a child will live and with whom;
- What time a child will spend with other family members (such as grandparents);
- Who will make decisions for the child and the principles for making those decisions;
- Child maintenance matters;
- How the parents will resolve disputes about the terms or operation of the plan and communicate with each other;
- How to change the plan to accommodate for the changing needs of the parents and the child;
- Any aspect of the care, welfare or development of the child including key issues such as:
- When and how a child will communicate with their parents;
- Where the parents will pick up and drop off a child;
- How the child will be disciplined;
- What school a child will attend;
- What medical arrangements will be made for a child;
- Arrangements for Christmas, Birthdays and special occasions; and
- Special arrangements necessary because of the child’s needs.
When can we enter into Parenting Plans?
Parenting plans may be entered into at any time during a parenting dispute. They can be entered into before or during legal proceedings and can also be varied or revoked by the parties through written consent.
Why should we enter into Parenting Plans?
If there are parenting matters that need to be resolved, a parenting plan is a generally cost-effective solution without proceeding through Court proceedings. They also tend to be more flexible than Consent Orders.
The Court will also consider any Parenting Plan entered into between both parents in the case where the relationship breaks down further and Court Proceedings are commenced.
However, one of the disadvantages of Parenting Plans is that they are not enforceable by the Court, unlike Consent Orders, where a contravention application can be made if the Consent Orders are breached.
What is the process for entering into Parenting Plans?
The first step would be to negotiate the terms of the Parenting Plan. Parenting matters are often emotionally charged, and drafting terms of the agreement that are clear, concise, and able to last the test of time is an art. To help you include all of the matters that should be included, we recommend that you obtain legal advice from a suitably experienced lawyer.
Understanding the practical meaning of the terms of the Parenting Plan is an important next step, so that the parties are able to carry out their agreement.
If a Parenting Plan deals with child maintenance matters, you may need to consider entering into a Binding Child Support Agreement as well.
Should we enter into a Parenting Plan?
While Parenting Plans can be an effective way to resolve a Family Law Parenting dispute, it may not the best option in all circumstances.
Does the Court Need to Be involved?
The answer to the question “does the Court need to be involved in the care arrangements” or “Do we need Parenting Orders after we are separated or divorced” is simply…”it depends and not always”.
There may be no need to involve the Court or lawyers if you have separated from your partner but your parenting relationship has remained healthy or amicable during this time. If you and your ex-partner are able to reach an agreement in relation to the parenting arrangements for your children, either on your own, with the assistance of lawyers or during a mediation, and do not require the agreement to be legally binding and enforceable, you may wish to consider drafting a parenting plan.
There are many professionals who are able to assist you in this process should you require it. While a parenting plan is not enforceable and does not create legal obligations on either parent, the Court can, and usually will, consider what has been previously agreed in a parenting plan should a parenting dispute come before the Court at a later date.
Because of this, a parenting plan should be in writing, signed and dated. You can change it from time to time as your children grow and their needs change. It can be changed by another signed written agreement or initialled amendments.
If there are situations and circumstances which may make a parenting plan impractical or inappropriate, you may wish to involve a lawyer and/or the Court or an impartial third party such as a mediator or an arbitrator.
Circumstances that may make a parenting plan impractical or inappropriate may include:
- If you and your ex-partner are unable to communicate on your own or reach an agreement in relation to the arrangements for your children;
- If there is a history of domestic violence or you have concerns about your safety or the safety of your children;
- If you have concerns that your partner will not abide by an agreement reached and/or you require the agreement reached to be binding and enforceable against all parties;
- In circumstances where you wish to have documentary evidence that you or your ex-partner are solely responsible for your children;
- Where your matter also relates to property or matrimonial assets and a distribution of those assets.
If any of the above factors are present, we would strongly encourage you to obtain legal advice. You can also do so if you are unsure of your legal position and need to talk to one of our professionals. Do keep in mind though that obtaining legal advice does not mean that you are obliged to bring the matter before the Courts to obtain a resolution. Wherever possible, we recommend adopting a co-operative approach to resolving your parenting disputes with a view to avoiding litigation if it is appropriate to do so.
An alternative to a parenting plan is a Consent Order. These are enforceable and usually do not require a Court appearance. To find out more about the benefits of a Consent Order and the process involved click here.