Why Should I Get a Parenting Plan?

By Carlos Turini – Accredited Family Law Specialist

Parents involved in a family law dispute about a child in Australia are required to attempt to resolve the dispute via counselling /mediation. This is a compulsory requirement. Parties are encouraged to enter into an agreement in writing about the future care of their children, a “parenting plan”.

As part of major reforms to the Family Law Act in 2006, a new Division 4[1] was added to Part VII of the Act entitled “Parenting Plans”. A very large stake was placed in “parenting plans” to help implement the intended reforms. An obligation was imposed by law on “advisers” to inform their clients about parenting plans and about where they may get further assistance to negotiate a parenting plan. [2]

The Objectives of Parenting Plans (Division 4 of the Family Law Act)

The objectives of the plans are :

“The parents of a child are encouraged:

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 by using or reaching an agreement; and
in reaching their agreement, to regard the best interests of the child as the paramount consideration.” [3]

What to include in a Parenting Plan

A parenting plan may cover numerous topics including

The parent with whom a child is to live;
the face to face time and telephone contact and other form of communication that a child is to spend with the other parent;
the allocation of parental responsibility for a child;
the process to be used for resolving disputes about the terms or operation of the plan;
any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child;
the child support that a parent will pay the other parent.[4]

Basically, a parenting plan may cover all matters normally addressed in parenting orders made by a Court,[i] whether by consent or otherwise. In order for the Child Support Agency to enforce a Parenting Plan, it must comply with specific requirements for a child support agreement pursuant to Parts 6 and 7 of the Child Support (Assessment) Act 1989.[5]

Formal Requirements of a Parenting Plan

There are some formal requirements for a parenting plan to be valid:

it must be in writing;
it must be signed by the parties; and
dated.[6]

A Parenting Plan is Not Legally Enforceable

Unlike parenting orders made by a court, a parenting plan is not legally enforceable and the parties to the agreement are not legally bound to implement it. The questions posed as the title to this article then becomes quite relevant.

What is the point of entering into a Parenting Plan if it is not enforceable?

While Parenting Plans are not legally enforceable, they are admissible in family law court proceedings as evidence of an agreement that the parties previously reached. Parenting orders made by a court are legally enforceable, parenting plans are not. However, if a party finds himself/herself in circumstances where the other party is not respecting a parenting plan, I do not believe that he/she would necessarily be in a less advantageous position than if there were parenting orders in place.

In my experience, provided that the terms of the parenting plan negotiated by parties appear to be in the best interest of children, enforcing parenting orders is not necessarily less complicated, quicker or have a more certain outcome than perhaps seeking to convert a parenting plan into parenting orders. In each case, the party needs to make an application to the Court.

I like Parenting Plans

Personally, I like Parenting Plans. As an accredited Family Law Specialist with over 20 years’ experience, I spend the majority of my time negotiating family law disputes including disputes about children. Creating a parenting plan allows the parents to focus on the specific objectives mentioned and the topics above that are relevant to their child/children. Parenting Plans are suitable in the majority of cases and assist the parties to a family law dispute resolve the dispute “outside court”. [7]

The fact that parents are able to reach an agreement by themselves and implement it in the absence of conflict seems ultimately more important than the details of the terms of the agreement.

Avoiding Children being exposed to marital conflict

Counsellors and psychologists who work in a family law disputes warn about the harm that conflict between parents has on children. There is substantial literature on topic available which warns about the risks created to children exposed to their parents’ marital conflict and separation; that unresolved parental conflict impacts children psychological growth and that such children are more likely to be affected into adulthood. At the same time, the same experts advise that the absence of conflict is very beneficial to their children. [8]

Should I get Legal Advice?

In my view, it is essential that before a client commences negotiations for a parenting plan, he or she should obtain legal advice about the legal rights and obligations of a parent under the Family Law Act. I may also advise my client about strategic and tactical considerations regarding the negotiations that he/she will be embarking.

Knowing the your parental rights and responsibilities under the law assists you in negotiating a sound and sustainable parenting plan which will be of benefit to all affected by the relationship breakdown.

95% of Family Law matters settle out of court, however the statistics include some matters which settle at the end of the journey, right at the steps of the Court, when all the emotional energy and legal costs involved in the litigation have been spent.

Negotiating a sound and sustainable parenting plan at the outset of your legal journey may help you avoid the lengthy, acrimonious and expensive, process of commencing court proceedings and driving the dispute all the way to a final hearing.

For more information, contact Carlos Turini

p: +61 2 6206 1300 | e: cturini@elringtons.com.au

[1] Family Law Amendment Act 2006

[2] Section 63DA of the Act

[3] Section 63B of the Act

[4] Section 63C(2) of the Act

[5] See Article 95% of Family Law Matters settle out of Court.

[6] Section 63C(1) of the Act

[7] See Article 95% of Family Law Matters settle out of Court.

[8] Children’s responses to separation and parental conflict