In an amicable relationship breakup, and particularly where parties, who are able to communicate well with each other, feel they are able to follow through with an agreement made between them, a Parenting Plan may be a useful way to document parenting arrangements in relation to your children rather than obtaining a court order.
Parenting Plans were first introduced into the Family Law Act 1975 in 1996, but was subsequently removed, and by amendments to the legislation on 1 July 2006, was re-introduced and is now contained in Part VII Division 4 of the Act.
The formal requirements are that the agreement is in writing, be signed and dated by the parties, and there is no particular form to use. There is no provision to register the Parenting Plan in Court or with government authorities, it is sufficient for each of you to keep a copy of the plan.
You may include various child related matters in a Parenting Plan as outlined under section 63C(2) of the Act, such as with whom the children live with, spends time with, communicates with, whether parental responsibility should be shared or allocated to one parent, and the Parenting Plan can include other people besides the children’s parents, such as grandparents and relatives.
Despite the ease at which a Parenting Plan can be created, it can override previous court orders. Hence it can be a useful way to vary court orders by agreement with the other parent.
The major limitation in the Parenting Plan is that it is not an enforceable document i.e. neither you nor the other parent can be “breached” by not following the terms contained within the Parenting Plan (unlike a Consent Order where you are legally required to follow the terms of the agreement). If a dispute arises out of a Parenting Plan and the matter proceeds to Court, the Court can take the substance of the Parenting Plan into account when deciding what Parenting Order to make. However, the Court is not bound to follow the Parenting Plan.
A Parenting Plan may also be revoked or varied by written agreement between the parents.
Parenting Plan is not suitable in every case, for example, where there is family violence, inequality of bargaining power, or where there is history of non-compliance to agreements reached between the parties. We strongly recommend that you seek legal advice about how to best formalise your parenting agreement in your particular case, as every case is different.
Readers are reminded that the purpose of this article is to provide general information only and is not to be taken as a substitute for independent legal advice.
Should you require any further information in relation to parenting plans or other family matters, please do not hesitate to contact our Family Law Department Manager, Donna Tolley on 1800 621 071 or email dtolley@attwoodmarshall.com.au
