Plain English Guide to Parenting Plans in Family Law - Legalwise Seminars

Susan Warda, Partner and Family Law team leader at Mills Oakley, provides a Plain English Guide to Parenting Plans below, which will help principals, teachers, school counsellors and other school employees to better understand this aspect of the law. To hear more about family law in relation to schools, Susan will present on the topic, Examining Family Law Issues in Schools at the School Law Summit on 31 May.

Introduction

The law encourages separating parents to reach agreement about matters concerning their children. Parents are encouraged to; take responsibility for their parenting arrangements and for resolving parental conflict; to use the legal system as a last resort rather than first resort; to minimise the possibility present and future conflict by using or reaching agreement; and to regard the best interests of the child as the paramount consideration.

To assist parents to reach an informal agreement concerning their children, the Family Law Act makes provision for parenting plans, which often interact with family law orders or existing court order enforcement in Australia processes when formalised through the court system.

What is a parenting plan?

A parenting plan is an agreement between the parents of a child in writing that is signed and dated by the parents. The agreement may deal with a variety of matters including:

• who a child is to live with;
• what time a child is to spend with another person or couple;
• who is to have parental responsibility for a child;
• if two or more people share parental responsibility for a child, how they are to consult with each other;
• the communication a child is to have with another person or other people;
• the maintenance of a child;
• how disputes about the terms of operation of the parenting plan are to be resolved;
• how a parenting plan is to be changed to take account of the changing needs or circumstances of a child or the child’s parents; and
• any aspect of the care, welfare or development of a child or any other aspect of parental responsibility of a child.

Parenting plans differ from family law orders, which are binding and enforceable. While plans encourage flexibility and cooperation, parents should still understand how these arrangements might later be reflected in or influence a family court law list matter.

How do I find out about parenting plans?

The Family Law Act places certain obligations on advisors, including lawyers, who are advising or assisting their clients in relation to parental responsibility for a child following a breakdown of the relationship between the parents of the child. They must inform their client’s that they could consider entering into a parenting plan in relation to the child and inform their client’s about where they can get further assistance to develop a parenting plan and the content of the plan.

For practitioners, remaining up to date through CPD for family lawyers or online CPD for family lawyers is valuable for understanding how to advise clients on parenting plans and the interaction between informal agreements and family law orders.

What do I need to think about if I want a parenting plan?

The Family Law Act sets out what information advisors must give parents who are seeking advice about a parenting plan.

That information is as follows:

• Decisions made in developing parenting plans should be made in the best interests of the child.
• If it is reasonably practicable and in the best interests of the child to spend equal time with each parent, parents could consider an arrangement of this kind.
• If it is not reasonably practicable or not in the best interests of the child to spend equal time with each parent, they could consider the option of an arrangement which involves the child spending substantial and significant time with each parent, provided that this is reasonably practicable and in the best interest of the child.
• If there is a parenting order in force in relation to a child, the order may include a provision that the order is subject to a parenting plan.
• If parents are to share parental responsibility for a child under a parenting plan, then it is desirable to include in the plan provisions as to how they are to consult with one another about decisions to be made.
• It is desirable to include in a parenting plan a process for resolving disputes about the terms or operation of the plan.
• It is desirable to include in a parenting plan a process to be used for changing the plan a process to be used for changing the plan to take account of the changing needs or circumstances of the child or the child’s parents.
• Programs are available to help people who experience difficulties in complying with a parenting plan.
• Section 65DAB of the Family Law Act requires a court to have regard to the terms of the most recent parenting plan in relation in relation to the child if it is in the best interests of the child to do so.

This reinforces how informal parenting arrangements can influence family law orders, particularly when considered during court order enforcement in Australia proceedings.

What is the effect of a parenting plan?

A parenting plan is an informal Agreement. It is not binding nor is it enforceable. This means that if one party reneges on the agreement, a court cannot intervene to enforce the agreement. However, if an application is made to a court for orders in relation to a child, the court is required to have regard to the terms of the most recent parenting plan that has been entered into between the child’s parents if doing so would be in the best interests of the child. A parenting order may be varied by a subsequent parenting plan between the child’s parents.

A parenting order may also be varied by a subsequent parenting plan between the child’s parents. Understanding this relationship between informal and formal arrangements is essential for both parents and professionals involved in family court law list matters.

Please contact the author if you have any queries about this article or area of law.

Susan Warda is team leader and partner in Mills Oakley Lawyer’s Sydney family law practice. Susan has particular expertise in family law matters that involve complex financial issues, including property settlements that incorporate family businesses, multiple assets and superannuation splitting. Susan is an accredited specialist in family law, and was named 2013 Woman Lawyer of the Year in Private Practice by the Women Lawyers Association of NSW. Susan also has extensive experience in resolving family law matters outside of the Court system. She is an experienced mediator and trained collaborative law practitioner, and is able to help clients resolve their disputes without having to be involved in costly and time-consuming litigation. As well as property and financial issues, Susan undertakes Hague Convention Applications, the separate representation of children and matters concerning parenting arrangements, child support matters and de facto relationship cases. She is the past Chair of the Austlaw Board, an association of independent law firms located throughout NSW, Victoria, Queensland and the ACT, a founding member of the Western Sydney Collaborative Family Lawyers network, a member of the Australian Institute of Company Directors (AICD), a Director on the NSW Board of Variety- the Children’s Charity and a Director of Variety Australia. Susan has been recommended as a Leading Family Lawyer in the 2018 Doyle’s Guide and one of two lawyers in NSW who features in Best Lawyers. Contact Susan at swarda@millsoakley.com.au or connect via LinkedIn .

You can also connect with Mills Oakley via LinkedIn  and Twitter

For lawyers, educators, and professionals seeking to deepen their understanding of parenting plans, family law orders, and court order enforcement in Australia, consider enrolling in specialised CPD for family lawyers or online CPD for family lawyers sessions. 

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