After separation or divorce, one of the most important considerations will involve the ongoing care arrangements for any children of the relationship. Amongst the many stressors of separation and divorce, having agreed terms and a clearly defined structure of parental responsibilities can be of great use.
There are a few different types of parenting agreements:
- oral agreements;
- a written parenting plan; and
- a formal Court order called consent orders.
Parenting plans are cost-efficient but are not legally binding
Unlike consent orders which are orders of the Family Court, creating a written parenting plan does not require parties to attend Court, often making them cost efficient.
This, however, also means that parenting plans are not legally binding documents. If one party does not adhere to the terms of a parenting plan, it cannot be enforced. A parenting plan is best described as a written record of the parents’ agreement for the care of the children.
A parenting plan must be:
- in writing;
- signed by both parents; and,
Key differences between a parenting plan and parenting orders
Parenting plans are a more efficient and cost-effective way to make legally recognised but non-binding arrangements for the care of children after separation. This is primarily because the matter does not have to go through the Court system.
Parenting plans are also usually quicker to prepare and enter into. Finally, legal representation is not required for a parenting plan, although at times, it may be highly recommended. You can either make arrangements for your parenting plan directly with your former partner or with the assistance of family dispute resolution (FDR).
However, parents need to be aware that a parenting plan is non-binding and a breach of any of the terms of a parenting plan has no legal recourse.
Conversely, parenting consent orders provide parents with formal binding parenting arrangements which are legally enforceable in the event of non-compliance. Parenting consent orders involve lodging your agreed parenting arrangements with the Family Courts in an Application for Consent Orders.
It’s also important that parents know that parenting orders can only be changed in limited circumstances (whereas a parenting plan can be changed/updated as required).
Parenting orders will often be more suitable where there are specific issues which require the security of binding orders to help regulate the parties’ co-parenting relationship. For example, if there has been a history of non-compliance by one parent, safety or risk issues, or if parents have difficulty agreeing on the care arrangements for children on a regular basis.
A key benefit of parenting orders is that they are legally binding and can provide safe and stable routines for children. The terms of parenting orders are enforceable by the Court and any breach of parenting orders will have consequences.
What should a parenting plan include?
Just like there is no standard approach to care arrangements for children generally, there is no right or wrong approach to parenting plans. You should consider discussing matters which are important to you and that you consider to be in the children’s best interests.
Often, parenting plans include information such as the following:
- Where the children will live;
- How much time they will spend with each parent;
- How the children will communicate with each parent and extended family members, like grandparents, aunts, uncles etc;
- What will happen during school holidays;
- Will there be separate arrangements for special occasions such as birthdays, Christmas, Easter, Mother’s Day and Father’s Day; and
- How child handover will be conducted.
If you or the other parent feels strongly about a particular issue, you may wish to discuss this, and if agreed, include it in the parenting plan. Some examples could include the use of mobile phones and internet usage, vaccinations, curfews, parent-to-parent communication, disciplinary action and dietary requirements.
When making decisions about what to include in a parenting plan, parents should consider the child’s best interests first. The child’s age should also be considered when devising the plan. That is, are the parents going to need to adjust the arrangements once the child reaches a certain age, and should these adjustments be added to the current plan too?
Parents should ponder the possibility of changes being made to the plan as time passes and decide how this can be done. For this reason, including review dates in the parenting plan can be useful. Likewise, if there is an agreement about how disputes should be resolved, this could also be captured in the parenting plan.
What if you can’t reach an agreement about the care of children?
If you are unable to reach an agreement independently with your former partner, or you find it difficult to discuss the arrangements in general, Family Dispute Resolution (FDR) mediation services can be a useful tool to help separated parents have a conversation.
If you would like some assistance in formulating a parenting plan or need some advice as to what will suit your specific circumstances, Family Law Resolutions can help.
How can a family lawyer help?
If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.
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