Parenting Plans. What You Need to Know
You do not need to go to Court or “go before a judge” to formalise your parenting agreement if you and your partner can agree on the future arrangements for your child or children.
There are two options for you to choose from:
- Create a parenting plan; or
- Obtain consent orders by filing an Application for Consent Orders.
While neither of the above options is required (and some parents merely have a verbal agreement), it is preferable to have a written agreement so that both parties are clear about how their children will spend time with them when they separate. This can alleviate parental stress as well as the effects of the separation on the children.
To avoid protracted and costly litigation, parents are encouraged to reach agreements over their children themselves. This can happen through the facilitation of a Mediator. At Law By Dan, we can assist you in this regard.
What is a Parenting Plan
A parenting plan is a written document that specifies the parenting arrangements. The plan can be devised in collaboration with the parents and then signed by both of them. A parenting plan is a convenient way to retain a written record of the informal arrangements between parents.
You do not have to attend Court or even present a copy to the Court if you want to make a parenting plan. A parenting plan is an informal agreement made between two or more parents.
A parenting plan is not enforceable because it is an informal agreement that has not been approved by the court. This means that if there is non-compliance with the agreement, a party cannot ask the Court to enforce it, which could cause problems in the event of a breach.
In the event that you would like to have an agreement with your ex-partner regarding parenting that is legally enforceable, parties can enter into an Application for Consent Orders in connection to the parenting arrangements for a child or children if they want to be bound by Orders. Orders must be approved by a Registrar of the Court before becoming an enforceable Court Order.
In the event that a party fails to comply with the Order, the party can seek Recovery, Contravention, or additional Orders as a result of the breach.
This type of order establishes an enforceable, long-term plan for how children will spend time with their parents after their parents have divorced.
When deciding whether or not to make orders in relation to a child, the Court must consider the child’s or children’s best interests.
Parents can be creative when it comes to what they want to happen with their children, taking into account things like international travel, Skype, FaceTime, special occasions, Birthdays, Christmas, face time, and how things like pickups and drop-offs are handled, as well as medical and schooling information.
What are parental orders and how do they work?
Approval can be used to make parenting orders, which means that both parties agree and offer the court their consent to issue the orders.
Before issuing an order, the court must examine the evidence. Documents, subpoenaed (court-ordered) material, witness testimony, expert reports, and anything else that can help the court make a decision are all examples of evidence. A trial or final hearing is the name for this type of hearing. Litigation is a term used to describe the court procedure.
It can be long, expensive and complicated, so if there’s any prospect of reaching agreement without the need for a trial, it may be worth exploring. At Law By Dan, we’ll provide you comprehensive advise on all of your alternatives.
Parenting plans are used by parents for a variety of reasons:
- They want the parental arrangements to be written down.
- They want a system in place that they can rely on for direction.
- They have parenting proceedings on foot, and they want something temporary in place in the meantime.
- A Protection Order prevents them from seeing or speaking to the children without one.
When will we be able to start making Parenting Plans?
During a parenting dispute, parenting plans can be made at any time. They can be entered into before or during legal procedures, and the parties can change or withdraw them by writing consent.
Why do we need to make Parenting Plans?
If there are any parenting issues that need to be resolved, a parenting plan is a generally less expensive alternative to going to court. They’re also more adaptable than Consent Orders.
In the event that the relationship deteriorates further and Court proceedings are initiated, the Court will take into account any Parenting Plan agreed upon by both parents.
One downside of Parenting Plans is that, unlike Consent Orders, they are not enforceable by the Court. If the Consent Orders are broken, a violation application can be filed.
What is the procedure for creating Parenting Plans?
Negotiating the provisions of the Parenting Plan would be the first step. When it comes to parenting issues, it’s an art to establish terms of agreement that are clear, simple, and able to stand the test of time. We urge that you seek legal guidance from an appropriately skilled lawyer to help you incorporate all of the issues that should be covered.
Understanding the practical meaning of the Parenting Plan’s terms is a critical next step in ensuring that the parties can carry out their agreement.
If your Parenting Plan includes provisions for child support, you may want to consider signing a Binding Child Support Agreement as well.
Formalising the living circumstances for our children – Parenting plan vs Consent Orders
A Parenting Plan is a written agreement between you and your ex-partner that details your children’s future living arrangements. A Parenting Plan does not have to be registered, and it is not enforceable in court. A current Parenting Plan, on the other hand, may be used as evidence in court of the parties’ intentions as to the living arrangements that are in your children’s best interests if Court proceedings be initiated later.
A Consent Order is a court order that is made by agreement and provides for the future living arrangements of your children. It is issued in response to a court application. A Consent Order will only be made by a court if it is determined to be in the children’s best interests. A Consent Order can be obtained without having to go to court.
The fundamental distinction between a Parenting Plan and a Consent Order is that a Parenting Plan is not legally enforceable, whereas a Consent Order is, which means that if it is violated, there may be legal ramifications.
As a result, in most cases, a Consent Order is the better alternative for a party seeking certainty and enforceability of the agreement about the children’s living arrangements. Because it is enforceable, if one party violates it, the other side can seek redress from the other.
A Parenting Plan is most effective when either of the parties has an amicable relationship, the agreement is unlikely to be enforced (i.e. each party is likely to abide by it), or the parties’ and/or the children’s circumstances are changing or are likely to change in the near future, and the living arrangements of the children documented in the Parenting Plan will need to be reviewed at a later date.
Even if the parties are friendly after the divorce, things can change in the future, especially if one of the parents remarries or relocates. These circumstances can put a strain on parent-child relationships and lead to parental conflict.
The fundamental advantage and downside of a Consent Order is that it is not easily altered. A consent order is in effect until the children reach the age of eighteen, unless the parties reach an alternative agreement or a significant change in circumstances occurs, which is addressed by a party filing an application with the court to revise the orders.
If a Consent Order is in existence and you want to amend it without the other party’s consent, you must apply to the Court for authorisation and show that there has been a significant change in circumstances.
If I want to change a parental order, what should I do?
If you want to change a parenting order, you must first try to reach an agreement with your former partner.
You can avoid costly and time-consuming litigation by negotiating an agreement outside of court.
If a settlement can be achieved, the arrangement can be formalised by a consent order filed with the Australian family court.
If an agreement to change a parenting order is not forthcoming, you will need to file an application to the Court seeking a change to the parenting orders, and you will need to satisfy the court that there has been a significant change in circumstances since the parenting order was made.
When is a child allowed to choose which parent he or she wants to live with?
A child can choose where they want to live at any age. When establishing whether parenting orders are in the child’s best interests, a court will consider factors such as the child’s age and maturity, the reason the child is expressing a certain opinion, and the recommendations stated in the family report.
We have consent orders in place, but the other parent refuses to follow them. What options do I have?
If a parent is not adhering to the court orders, you can write to them or have a lawyer write to them to inform them that they are in violation of the court orders. If the parent does not react, you may want to have an independent mediator ask them to mediation with you in order to try to address the matter without having to go to court again.
If the other parent refuses to attend mediation, you may choose to make a court application for a recovery order, or your counsel may advise you to file a violation application.
Depending on the circumstances, a different course of action may be necessary.
At Law By Dan, we have a team of family lawyers who can assist you with parenting plans and/or consent orders. Reach out to us for a free family law consultation.