Whether you have a good co-parenting relationship or are experiencing difficulties, having a binding parenting arrangement in place is very beneficial.
The law does not require that parents have anything in writing about parenting arrangements and parents can simply have a verbal agreement. However, to ensure clarity of understanding, reduce problems and quickly and clearly identify the issues for the police and the courts, it is recommended that you make any agreement in writing either by a Parenting Plan or a Parenting Order.
A Parenting Plan is a written document signed and dated by the parents outlining the care arrangements for the children. It requires the consent of both parties but there is no legal format for a Parenting Plan, it just needs to be written, signed by the parties and dated.
Importantly, a Parenting Plan is not legally binding. It is simply a written record between the parents based on trust and often only works for parents who have an amicable co-parenting relationship.
Making a Parenting Plan is generally an inexpensive way to document your parenting agreement. Often, if you have attended a community based mediation service and reached an agreement, you will leave with a Parenting Plan. We recommend that you seek legal advice in that event to discuss whether you should then document this agreement into a Parenting Order by consent.
Parenting Plans are not binding. If a parent acts in a way that is contrary to the Parenting Plan, for example by not returning the children, you cannot rely on the court to return the children. If you are concerned about a parent breaching the Parenting Plan or you simply want the added security of a binding agreement, you should formalise your parenting arrangements by a Parenting Order.
If parents regularly disagree about parenting arrangements or are concerned about possible breaches, a Parenting Order made by agreement or ordered by the court may be the most appropriate course of action.
Where parents have reached agreement and want the added security of a Parenting Order, they can file an application for consent orders in the Family Court of Australia. Should the court consider the parenting arrangements to be in the best interests of the children, the agreement will be approved.
A Parenting Order sealed by the court will then be issued to the parents. This is then a legally binding document with serious consequences if it is breached by either parent.
Do parents have to go through mediation first?
Should parents not reach agreement about care arrangements for their children, they are required to attend a mediation before going to court. In some cases, mediation may not be appropriate and you can apply to the court for a mediation exemption, for example if your matter is urgent or where there are safety concerns between the parties.
If you have attended mediation and it was unsuccessful or if you have grounds to seek a mediation exemption, you can apply to the Family Court or Federal Circuit Court seeking Parenting Orders. You will have to file documentation in support of your application and the other parent will have to file some documents in response. The court will then make Parenting Orders that it considers to be in the best interests of the children.
It is generally best if parents can reach their own agreement and be in control of the care arrangements for their children. However where an agreement is not possible, you may have no option but to file proceedings in court seeking Parenting Orders.
What is included in a Documented Parenting Arrangement?
A Parenting Plan or Parenting Order can outline some or all of the following:
- whom the children live with and spend time with;
- who makes the major decisions affecting the children (known as parental responsibility);
- what communication the children have with each parent including FaceTime and telephone calls;
- where the children go to school;
- process for changeover;
- school holiday arrangements;
- overseas travel; and
- specific issues between the parents. For example, how they communicate with each other, how they resolve future disputes and exchange of information concerning the children.
Things to consider:
When making parenting arrangements, you should consider Section 60CC of the Family Law Act 1975 which include:
- the age of the child;
- special needs the child may have e.g. medical and schooling;
- the capacity of each parent to parent the child;
- practical considerations around accommodation, transport and expenses;
- the cultural needs of the children, especially where the child is Aboriginal or Torres Strait Islander;
- the child’s own views, and
- the safety of the child.
DBL Solicitors can assist you in either documenting your parenting arrangements or commencing/responding to parenting proceedings in court. Contact us for further information or a confidential discussion about your circumstances.