Table of Contents
What is a parenting plan?
A parenting plan is a written agreement between parties which outlines details about the care and welfare of the children. These plans may need to be renegotiated as the children grow and as their circumstances and needs change.
- Parenting plans are voluntary informal agreements reached between the parents of children that deal with various aspects of the child’s living arrangements, daily life and parental responsibility concerning long-term issues.
- A parenting plan is an effective way of reducing the risk of future conflicts concerning decisions relating to your children.
- Parenting plans are not enforceable by the court. However, parents are able to apply to the court to make a parenting order on those agreed terms. Once this order has been made, the order is legally binding.
- The court when making the parenting order, does not have to follow the parenting plan but will consider its terms in its overall decision. Parenting plans are flexible in that they may be amended from time to time, where both parties agree.
- When deciding on the terms of a parenting plan, you need to consider whether the terms are in the best interests of the children. It is important to encourage your child to spend time with the other parent and their other family members. It may also be appropriate to consider any intentions expressed by the children in who they would like to spend time with.
- Parenting plans can be organised between parents outside of court. These plans may need to be renegotiated as the children age and as circumstances and needs change.
- If parents are unable to reach an agreement through this method, a parenting order may be more appropriate to formalise a parenting agreement.
- Parenting orders are legally binding and address a wide range of matters concerning the child e.g., when and who will pick up the children from school and the children’s living arrangements.
When you may need to go to court
You will need to go to court to apply for a divorce order, however parenting arrangements do not need to be determined by a court for them to be valid or formalised.
You will need to apply to the court where it is unsafe to reach an agreement on your own. Additionally, court intervention may be needed after genuine attempts to resolve your dispute has failed.
Dispute resolution can be used at any stage of separation and as many times as needed to reach an agreement or to solve preliminary issues before applying to the courts. Family Dispute Resolution is a mandatory requirement before an application can be filed with the court for parenting matters.
Parenting orders process
The first step is to obtain a certificate pursuant to Section 60I Family Law Act 1975. This certificate is confirmation that you and the other party have attempted to participate in Dispute Resolution. You may be exempt from this step where the matter is urgent or if there has been or there is a risk of family violence. If an exemption applies to you, you must file an affidavit attesting to this.
If the parties have reached an agreement, it may be documented by way of parenting plan, or the parties may apply to the court for consent orders.
Where the dispute has not been resolved or if the other party does not genuinely participate, you are to provide written notice to the other party of your intention to commence proceedings. This notice will set out the issues in dispute and orders sought. The other party has 14 days to reply to your intention to commence proceedings.
If you have received this notice of intention, you must reply either accepting or declining the offer. If you do not accept the offer, you must set out in a letter the issues in dispute and the orders that you will be seeking if you wish to commence proceedings or defend any proceedings initiated.
Where an agreement is not reached, then you may make another attempt at dispute resolution or commence proceedings in court.
What types of orders can a court make about a child?
Parenting orders can be made to address a variety of conduct and circumstances. For example, the court can make an order identifying when a parent can communicate with the children.
Parenting orders can also be made to prohibit certain conduct such as speaking negatively about the other parent in front of the children.
The court has power to make orders on the following matters:
- Living Arrangements
The court may order where and when the child is to live with a parent. This type of order will identify which parent the child is to live with and for how long. These orders may also include where the child is to sleep.
- Parental Responsibility
Parental responsibility encompasses the duties and responsibilities that a parent has for their children. An order for equal shared parental responsibility is a joint obligation for both parents when making decisions on long term issues.
It is also possible for orders to be made which designate particular aspects of parental responsibility to one parent.
- Communication with Family Members
Orders can be made which identify how and when a child is to communicate with a parent or family member when in the care of the other parent. Communication may be ordered to be by electronic means such as Facetime or phone call.
An order for changeover concerns the arrangements made for how the child will be transferred from the care of one person to the other. It may be appropriate for it to be ordered that changeover is to occur in a neutral or public space in circumstances where parents have a more hostile relationship.
- Medical Care
Orders of this kind are not merely reserved for children with serious medical conditions or disabilities. Orders can be made stipulating that parents are to communicate with each other on decisions concerning the health of a children. Examples of medical-related orders include check-ups, emergency health care and immunisation.
Orders may be made identifying which school a children is to attend, who the school is to contact when there is an emergency and the ability for a children to participate in extra-curricular activities. Orders may also be made to state which parent or both parents are to attend school meetings or school events.
Parenting orders can be made permitting or prohibiting a parent from taking a child overseas or interstate. Orders concerning which parent has custody of a child’s passport may be made as well as orders requiring a parent to provide notice to the other parent of their intention to take the child out of the state or country.
It is important to be aware that it is illegal to remove a child out of Australia without the consent of the other parent or in the middle of parenting proceedings.
- Children and Other Family Members/People
The court may make orders dealing with a children’s connections with other people. Orders may be made allowing a child to spend time with a grandparent or other significant relatives. On the other hand, an order can be made preventing a child from interacting with a person.
How do I draft a parenting plan?
Parenting plans do not need to be formatted in a particular way. However, for a parenting plan to be valid, the following requirements apply:
- In writing
- Made between the parents of a child
- Signed by the parents of the child
- Is dated
- Deals with matters under section 63C (2) Family Law Act 1975.
What matters do Parenting plans deal with?
Court intervention should be approached as a last resort, and you are required to show that you made a genuine attempt to resolve disputes before commencing proceedings.
At what age can a child choose who they live with?
Age and maturity play a role in determining how heavily the court may rely upon the views of a children.
There is no established age for when a child is able to choose who they will live with. Views of the children are one of a number of factors that the court may consider in making a parenting order. A court is required to consider the best interests of a child when making a parenting order.
Under section 60CC Family Law Act 1975 the court is to consider various matters to determine what is in the child’s best interests. The primary considerations are:
- The benefit to the child of having a meaningful relationship with both parents and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
The views expressed by the child and any other factors relevant to the weight attached to the views of the child are additional considerations in determining the best interests of the child (Section 60CC(3)(a) Family Law Act 1975.
A child’s level of maturity, sex, lifestyle, and background are other additional factors that the court may consider when determining the child’s best interests.
The child’s age and maturity may be examined by a family consultant who will provide a report to the court. This report will assist the court in making their decision.
A report from a private psychologist of counsellor may also help to ascertain a child’s level of maturity and understanding of the present situation without running the risk of coercion from a parent. How well the child understands the nature of the dispute and how informed their intentions are, will also be considered by the court.
The court may decide to appoint an Independent Children’s Lawyer (ICL) to independently express the child’s wishes. The ICL may use reports from the experts mentioned above as well as statements from the child’s teachers and police. The ICL may even decide to interview the child.
The court is likely to accept the wishes of children in their teenage years with evidently higher levels of maturity. However, maturity depends on the individual child and cannot necessarily be measured by age as well as consideration of any adverse negative influence by the other parent where a child appears to express views in line with such negative narrative of the other parent.
Outside of litigation, there are multiple techniques of dispute resolution that may offer an opportunity for the child to be included. For example, parents may agree to a child-inclusive private mediation which allows the child to express their views along with their parents.
What happens if my children do not want to spend time with the other parent?
It is your responsibility as a parent to encourage your child to spend time with the other parent. Speaking positively with your child about spending time with the other parent and talking to your children about the activities they can do with the parent to reassure the children. This gives them something to look forward to fostering a positive and meaningful relationship with both parents.
Where children express a view that they do not wish to spend time with the other parent in accordance with a parenting plan or court orders, consideration could be given to counselling services such as therapeutic counselling .Care must be taken when exploring these avenues.
If the children are continually expressing that they do not want to spend time with the other parent, then you may want to consider with the other parent whether it is possible to alter the current parenting arrangements either temporarily or permanently.
It may be the case that the children’s circumstances have changed or that they have matured in age and the current arrangements are no longer compatible with these changes.
If you and the other party are bound by a parenting order that deals with who the children are to spend time with, then you have a duty to comply.
Failure to comply may result in a contravention of a parenting order. This has serious consequences for the breaching parent. You must have a “reasonable excuse” for failing to comply with a parenting order.
Your children’s discontent is not in isolation considered to be a reasonable excuse. However, a reasonable excuse may include contravening an order if you reasonably believe that disobeying an order was necessary to protect your child’s safety.