The law encourages parents to reach an agreement about how to parent their children after separation, and to regard the court system as a last resort. This is because, not only can court proceedings be time consuming and expensive, but also because co-operation between separated parents will reduce stress for children and parents alike.
A parenting plan is a less formal way of documenting your parenting agreement with the other parent. This can be a good way of recording your agreement if you and the other parent are able to co-operate and do not want or need to enter into a legally enforceable agreement.
A parenting plan can provide details of where your children live, how they will spend time between the parents, how parental responsibility is exercised, how to resolve any disagreements that may arise, as well as any other arrangement that relates to the parenting of the children.
Parenting plans are not legally enforceable and cannot be registered in court. If you wish to register your parenting arrangement with the court you should consider a consent order.
While a parenting plan is not enforceable, if there is a dispute in court later on, the court may look to terms of any existing parenting agreement to determine what may be in the best interests of the child.
Also, if you have a pre-existing court ordered parenting arrangement you can, at any time, override that arrangement by entering into a parenting plan with the other parent. Similarly, an existing parenting plan can be overridden by a new parenting plan, a consent order or parenting order.
You are able to alter your previous parenting plan by agreement with the other parent or by creating a new plan to replace it.
Parenting Plan Requirements
Both parents must enter into the parenting plan willingly, without either parent coercing or threatening the other in any way. The plan must be in writing and signed and dated by both parents. Both parents should keep a copy.
While parenting plans are usually formed between the child’s parents, they can also be made with other people, such as between a parent and step-parent or between parents and grandparents.
Consent Orders are similar to a parenting plan, as they are also formed by both parents reaching an agreement about their parenting arrangements. Significantly however, consent orders are made by the Family Law Courts, are legally enforceable and penalties may apply in circumstances where the orders are found to have been contravened by a party. You may prefer this type of arrangement if you want a legally enforceable agreement.
Generally, a consent order is drafted by a family lawyer, signed by both parties (and their lawyers), then filed in the court registry with any relevant documentation. If the order is approved by the court, then it is binding and enforceable for both parents.
When considering whether to approve an application for a Consent Order, the court will look to whether the proposed order is in the child’s best interests. The court will also consider the legal framework referred to in the parenting section above.
If your proposed order includes arrangements for the child to live with a non-parent the court must be satisfied that it is appropriate to make such an order in the circumstances. The court will also require the parties to attend a conference with a family consultant prior to making the order.
You do not need to engage in the family dispute resolution process to file an Application for Consent Orders with the court and you can apply for a Consent Order without having a current case before the court.