Parenting Plans

Many parents are able to work together and reach agreement about care arrangements for their children after a relationship breakdown. Once agreed, the agreement can be written down in a document called a Parenting Plan. This is simply a document that sets out the agreed arrangements and is signed and dated by both parents.

Parents can create a Parenting Plan together, or with the assistance of a family dispute resolution practitioner, mediator or lawyer.  A Parenting Plan does not need to be signed by a lawyer though.

Parenting Plans can cover anything about the children at all, such as who the children live and spend time with, where they will go to school, how medical issues are to be dealt with, financial arrangements, and how any future disputes are to be dealt with (e.g. through further community-based mediation).

The critical thing to remember about Parenting Plans is that they are not enforceable by the Court. If however, parties do need to go to Court about parenting arrangements at a later date, the Parenting Plan will be taken into account by the Court if it is in writing, it is dated and signed by both parents, and it was made free from any threats, pressure or intimidation.

Other than in exceptional circumstances, a Parenting Plan created after an earlier Parenting Order will “trump” the Parenting Order. Parents may have Court Orders and then agree to change some aspects of the Order. They can do this by entering into a Parenting Plan, however they must be aware that this means they will no longer be able to rely on (or enforce) those aspects of the Order which are now inconsistent with the Parenting Plan. If one parent does seek to have the other parent charged with breaching a Court Order, the Court is required to take into account the existence of any subsequent Parenting Plan that the parties may have entered into.

Parenting Plans are therefore affordable and a simple way for parents to record their parenting arrangements, but such documents must be approached with an awareness of the legal implications they have. It is cause for concern that even if parties have a Court Order that is the result of a full-blown Trial before a Judge, with the benefit of expert evidence and legal representation, this Order can potentially be invalidated by the parents entering into a later Parenting Plan with no legal advice whatsoever.

There is no “cooling-off” period for Parenting Plans so it is always wise to obtain legal advice from an experienced family law practitioner prior to entering into a Parenting Plan, whether a party has a Court Order or not.

At any time, parents can jointly apply to the Court for the terms of their parenting arrangements to be formalised in a Consent Order. Parties should always seek legal advice if they wish to consider this step, because while a Consent Order will offer the certainty of being enforceable by the Court, the Order will also remain in place until the children involved turn 18 and can only be changed if the Court is satisfied that a material change in circumstances has taken place. For some parties the flexibility that a Parenting Plan offers is preferable, depending on the circumstances. Legal advice should always be sought in considering either of these options for formalising parenting arrangements.

Shelley O’Connell