_edited.png)
Parenting Plans
What is a parenting plan?
A parenting plan is a private and voluntary agreement specifying parenting arrangements, which can be negotiated between the parties themselves or with the assistance of counsellors, family dispute resolution practitioners or lawyers.
If efforts at private agreement fail, parties may apply to the court for orders specifying post separation arrangements.
Private agreements and parenting plans are inexpensive, quick, and easy to vary, and they do not take the same emotional toll as litigation on either children or parents.
Since the 2006 amendments, they can be used to override previous court orders.
Formal requirements
A parenting plan is a type of parenting agreement that meets certain technical requirements under the Family Law Act 1975 (Cth). The plan must:
Be in writing:
-
Be signed by both parents;
-
Be dated;
-
Deal with certain parenting issues; and
-
Not be made under any threat or coercion.
Not legally binding
It is important to note that parenting plans are not legally binding and are not compulsory for separating parents.
Many parents do not want or need to make their parenting agreements enforceable. However, if the parties do want more certainty and legal enforceability in their arrangements, they may apply to the court for consent orders, instead of or after making a parenting plan or otherwise coming to agreement.
Parenting plans that vary orders
Under section 64D of the Family Law Act 1975 (Cth), the general rule is that a court order made after the commencement of the 2006 amendments is subject to the provisions of any later parenting plan dealing with the same issues. This means that parties can effectively vary arrangements made in a court order by later making a valid parenting plan. For example, if earlier court orders stated that a child was to spend equal time with each parent, and the parties now make a valid parenting plan stating that the child will live with one parent and spend certain time with the other, the order for equal time will no longer be enforceable.
There are exceptional circumstances, however, including those involving family violence, abuse or the likelihood of one parent using coercion or duress to seek the agreement of the other to a parenting plan.
In these types of cases, if coercion can be foreseen, the court may make a special order saying that orders can only be varied by other court orders, effectively negating the usual effect of parenting plans and requiring the parties to return to court if they seek the orders to be changed.
Not legally binding
It is important to note that parenting plans are not legally binding and are not compulsory for separating parents.
Many parents do not want or need to make their parenting agreements enforceable. However, if the parties do want more certainty and legal enforceability in their arrangements, they may apply to the court for consent orders, instead of or after making a parenting plan or otherwise coming to agreement.
Parenting plans that vary orders
Under section 64D of the Family Law Act 1975 (Cth), the general rule is that a court order made after the commencement of the 2006 amendments is subject to the provisions of any later parenting plan dealing with the same issues. This means that parties can effectively vary arrangements made in a court order by later making a valid parenting plan. For example, if earlier court orders stated that a child was to spend equal time with each parent, and the parties now make a valid parenting plan stating that the child will live with one parent and spend certain time with the other, the order for equal time will no longer be enforceable.
There are exceptional circumstances, however, including those involving family violence, abuse or the likelihood of one parent using coercion or duress to seek the agreement of the other to a parenting plan.
In these types of cases, if coercion can be foreseen, the court may make a special order saying that orders can only be varied by other court orders, effectively negating the usual effect of parenting plans and requiring the parties to return to court if they seek the orders to be changed.
Changing or terminating a parenting plan
A parenting plan may be changed, or terminated, at any time by written agreement between the parties.
Issues addressed in a parenting plan
A parenting plan can deal with one or more of certain parenting issues. These include:
-
Who the child lives with;
-
The time the child will spend with each parent and also other significant persons such as grandparents;
-
The time that the child will spend with the parents on special days i.e. the child's birthday, the parent's birthdays, Christmas day and the like;
-
The allocation of parental responsibility regarding the long term decisions for the child;
-
How the parents will communicate with each other and times when the child will communicate with the other parent while not in their care;
-
Interstate and overseas travel arrangements;
-
Notifying the other parent in cases of their being a change to their residential address or phone number; and
-
Any other aspect of the child’s care, welfare and development that the parents wish to address.
