Why Do I Need a Parenting Plan?
When parents separate and they have children under 18, it is important to reach an agreement about parenting arrangements as soon as possible. An agreement can be reached between parents without any assistance, by attending mediation together, or with lawyers assisting with negotiations about formalising a parenting agreement. A Parenting Plan is a written agreement, signed by both parties, that sets out the parenting arrangements for children as agreed between parents without court intervention. A parenting plan is not a court order and therefore is not legally enforceable. However, a parenting plan can be a highly influential document should parents find themselves before a court with a dispute about parenting arrangements. The court will consider the parenting plan when making determinations about parenting arrangements, what terms have been agreed to previously and how parents have been able to comply with that agreement.
Parenting Plan or court order?
A parenting plan is more flexible than a court order and parents can vary and change the agreement as they see fit and as agreed between them. When children are very young and many changes are occurring in their lives, a parenting plan is often useful because it can be easily varied in accordance with a child’s developmental needs.
If parents decide that they wish for the parenting plan to become a court order, parents can make an application by consent with the court seeking orders in the same terms as the agreed parenting plan. Once the agreement is crystallised into an order, the order can be enforced if a parent breaches it. A party can also bring contravention applications before the court if one parent is in breach of the court order.
It is always best for parents to reach an agreement about the care arrangements of their children without court intervention whenever possible. Under the Family Law Act, parents have duties and responsibilities in relation to their children at all times. At law, there is a presumption that both parents share equal parental responsibility for their children. In exercising equal parental responsibility, parents are obligated to make joint decisions about the major life issues of their children, for example, their name, enrolment as school, medical treatment and cultural matters. Under the Act, children have the right to have a meaningful relationship with both parents and it is assumed by the court that parents will observe their parental obligations and responsibilities, including facilitating the meaningful relationship with the other parent post-separation. When entering into agreements about arrangements for the children, the arrangement must be focused on the best interest of the child and be practical.
Parenting arrangements may cover:
- where the children live
- who the children spend time with and communicate with
- schooling or childcare
- medical issues
- religious or cultural practices
- financial support for the children
- parental responsibility for the arrangements
- how those with parental responsibility will communicate with each other.
Whilst a Parenting Plan is often between parents, it can also include people other than parents, such as grandparents, who have vested interest in the child’s welfare and development.
It is helpful to refer to section 60CC of the Family Law Act for an understanding of what the court considers to be in the child’s best interests when you are considering a care agreement for children
It is recommended that parties attend mediation in order to reach an agreement about parenting arrangements. If mediation is successful, a parenting plan can be drafted and signed by both parties moving forward. If an agreement is not reached, some mediators are able to issue a section 60I certificate which will remain valid for 12 months. If parties intend to initiate court proceedings it is a requirement that they have attended mediation first, only in some circumstances can you make an application without a section 60I certificate, such as urgent applications. If you have been unable to reach an agreement with the other parent and/or consider that your matter is urgent, you should seek legal advice immediately.
Mediation services are offered by services such as Relationships Australia or United Care Queensland. These services are often free for service.
In the alternative, parties can attend upon an accredited mediator for the purpose of reaching an agreement and entering into a Parenting Plan or Consent Orders. Nationally Accredited Mediators are often also experienced practising family lawyers or barristers and can assist with both simple and complex legal matters. You can attend mediation independently, or you may wish for your lawyer to attend with you. Before you attend mediation, it is recommended that you seek legal advice about parenting matters so that you understand the legal implications of a parenting agreement before you settle on one.
Attending an accredited mediation is a highly recommended part of the process and an opportunity for parents to have meaningful discussions about parenting matters and make a real effort to settle on an agreement before making an application with the court seeking parenting Orders. It is also helpful to understand what issues can be agreed upon and what issues remain in dispute. The result will be a Parenting Plan that reflects the best interests of the children and is operable for all parties involved.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.