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  • Writer's pictureSianne Way

PARENTING PLANS

Updated: Nov 3, 2022


Authored by: Sianne Way SENIOR ASSOCIATE | +61 0431 276 197 | sianne.w@juluislawyers.com.au


PARENTING PLANS

Family law Act 1975 (Cth) Part VII, Division 4

Introduction


The Court encourages parties to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan.


Where a relationship has not broken down completely and the parties are able to discuss and recognise what is in the best interests of their child/children and come to an agreement on the same, a parenting plan may be a good way forward (provided there are no issues of harm to the child/children and little risk in the parties not complying with the terms of the parenting plan),


Further, as a parenting plan is worked out between the parties, it can also mean that parties can both have more control over the process and save a lot of time, money and distress.


What is a Parenting Plan?(Family Law Act 1975 s 63C)


A parenting plan is an informal, voluntary agreement that covers: -

  • the day-to-day responsibilities of each parent;

  • the practical considerations of a child’s daily life; and

  • how parents will agree and consult on important long-term issues about their children.


It must be in writing, signed and dated by both parents. It also must be made free from any threat, duress or coercion.


Whilst a parenting plan is not binding, if a dispute ensues and the matter does go before the Court, the Court will likely consider the terms of the parenting plan when considering what parenting orders to make, therefore it can be a useful tool, irrespective of it not being legally binding.


What can be included in a Parenting Plan? (Family Law Act 1975 s 63C(2))


To be a parenting plan under the Family Law Act 1975, a plan must deal with an aspect of the care, welfare, and development of a child.


“A good parenting plan will be practical, simple and concrete.”

It can include provisions on what happens if a dispute arises, or if the parenting plan needs to be amended.


A plan may include:

  • the person or persons with whom a child is to live;

  • the time a child is to spend with another person or other persons;

  • the allocation of parental responsibility for a child;

  • if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

  • arrangements relating to other persons who might regularly care for the children, such as grandparents or step-parents;

  • the communication a child is to have with another person or other persons;

  • maintenance of a child;

  • the process to be used for resolving disputes about the terms or operation of the plan;

  • the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan; and

  • any other aspect of parental responsibility for a child.



Additional considerations when developing Parenting Plans

When deciding what to include in a parenting plan there are several other important issues that should be considered. If parents cannot agree and decide to go to Court, the Court will also be required to consider these issues when making parenting orders.


What is in the best interests of a child?


A child’s needs must come first and should be always prioritised when making a parenting plan.


The Court decides what is in the best interests of a child by looking firstly at the primary considerations outlined in the Family Law Act 1975, which are:


  • the benefit to a child of having a meaningful relationship with both parents; and

  • the need to protect a child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.


In applying the considerations referred to above, the Court will give greater weight to the latter – protecting a child from harm.


Equal Shared Parental Responsibility


The Court takes the view that the best interests of a child are met when the child’s parents have “equal shared parental responsibility,” unless there are reasonable grounds to believe that a parent, or a person who lives with a parent, has engaged in abuse or family violence.


The term “equal shared parental responsibility” refers to the shared responsibility for making the decisions about major long-term issues for a child, such as the school they will attend, their education, and any long-term health issues.


Where shared parental responsibly is considered, parents will need to consult with each other and try to come to joint decisions about long-term issues.


Equal Time


Where parents have equal shared parental responsibility, the Court is required to consider whether it is in the best interests of the children for them to spend equal time with each of their parents, and whether spending equal time with each parent is reasonably practicable. If it is, this type of an arrangement should be considered.


What is reasonably practicable?


Ultimately, parents need to consider the practicalities of any type of arrangement for a child, based on their circumstances. Consideration should be given to:

  • how far apart the parties live from each other;

  • the ability of the parties to implement this type of arrangement;

  • how well the parties communicate with each other; and

  • the impact the arrangement will have on a child.


Substantial and significant time


Where an equal time arrangement is either not reasonably practicable, or not in the best interests of a child, the Court must consider an alternative that is in the child’s best interests. One such alternative is that the child lives with one parent and spend “substantial and significant time” with the other parent.


This refers to a child spending time with both parents on weekends, holidays, regular days and nights, as well as the sharing of special occasions, for example. It means both parents are involved in the child’s daily life.


Parenting/Consent Orders & Parenting Plans


Parenting orders are interim or final orders that are made by the Court following submissions and hearings, whereas consent orders are orders that are agreed to by both parties.


The Court will have regard to recent parenting plans when making parenting orders, how they have or have not worked, and each party’s commitment to the plan.


Parenting plans allow for flexibility and can be changed with consent of both parties at any time. Conversely, to vary a consent order, even if the parties have agreed to the variation, an application would need to be made to the Court. That said, it is worth noting that it is possible to enter a new parenting plan, which may supersede an existing consent order (unless there is provision within the consent order that does not allow this).


Ultimately, there is little difference as to the content of a parenting plan and a consent order; the main difference is its enforceability and whether the parties believe there is a risk in the other not complying.


Summary (Family Law Act 1975 s 63B)

Ultimately, in proceedings involving children, the Court wants parties: -

  • to agree about matters concerning the child;

  • to take responsibility for their parenting arrangements and for resolving parental conflict;

  • to use the legal system as a last resort rather than a first resort;

  • to minimise the possibility of present and future conflict; and

  • in reaching their agreement, to regard the best interests of the child as the paramount consideration.

Should you need assistance with drafting a parenting plan or any other parenting related matter, LGee & Julius Lawyers are here to provide advice and assistance on the most effective solution for your individual circumstances.

We look forward to discussing with you how we can assist.





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