Benefits and pitfalls of entering into a parenting plan

There are two ways to record the parenting agreement between separated parents. The first is a parenting plan; the second is a consent order.

What is a parenting plan?

This is a document that records an informal agreement between parents about matters concerning their children. It must be in writing, signed by both parents and dated.

Parenting plans can deal with one of more of the following issues:

• Where a child will live;
• The time the child will spend with each parent or any other relevant person;
• Allocation of parental responsibility;
• The communication the child will have with one parent when the child is living with the other parent
• Issues regarding health, culture, religion, education or any other matter relevant to the child.

Parenting plans may be drawn up by the parties themselves (providing the formal requirements are satisfied) or the parents may be assisted in drawing up the parenting plan by a family dispute resolution practitioner or solicitor.

A parenting plan that comes after a court parenting order dealing with the same issues renders the court order unenforceable.

Parenting plans are not registered and may be amended at any time by entering into a further parenting plan. In this way they are a sensible, cost effective option for parents to record their agreements when circumstances change.

The provisions of any earlier parenting plan may also be taken into account by a court if asked to determine a later application for parenting orders.

Streeterlaw’s Simone Green, a Family Law specialist, said the individual circumstances of a separating couple will determine whether a parenting plan or parenting order is needed. “It is important to note that a parenting plan that comes after a court parenting order dealing with the same issues renders the court order unenforceable,” she said.

“As legal practitioners, we have an obligation under the Family Law Act to advise clients about parenting plans as a viable option to record parenting agreements without recourse to court involvement, however there will always be circumstances in which a parenting order is more suited to the needs of the parents. The big difference between a parenting plan and a parenting
order is that a parenting plan is not enforceable by a court or the police.”

What is a parenting order?

A parenting order is a formal order of the Family Court or Federal Circuit Court and is made under the provisions of the Family Law Act. A parenting order can deal with all of the same issues as a parenting plan but is enforceable and can have serious penalties if contravened.

Where additional certainty is required by one or both of the parents as to the compliance of the other with the agreement, we advise that the parties make an Application for Consent Orders, setting out the terms of their agreement. The Registrar of the Family Court will consider the terms and usually make orders giving effect to the terms of the proposed agreement. This is a cost effective method of recording a parenting agreement when compared with a lengthy and expensive court hearing before a judge.

Ms Green said the inflexibility of a parent order can raise challenging issues down the track: “The difficulty with a parenting order is that it can’t be changed, so any desire by one party to vary any one of the agreed practices is difficult as the orders are enforceable.

“Parenting consent orders are generally discouraged for very young children unless there are good reasons to do so. This is because it is very difficult to foresee the changing needs of a very young child in respect to future care arrangements.”

In situations where there is no agreement between the parents, however, neither a parenting plan nor consent orders are an option. In those circumstances it may be necessary to file an Initiating Application in the Family Courts for a court judgment.

If you would like further help or advice about formalising a parenting plan with your former spouse, please contact the Family Law experts at Streeterlaw on 8197 0105 or email advice@streeterlaw.com.au.