Parenting plans & orders

An informal parenting arrangement occurs when both parties come to a casual agreement about the care of their children. This typically occurs when there has been an amicable separation and is usually discussed between the two parties verbally, without documenting the agreement.

The risks associated with an informal parenting plan is that while both parties might be amicable in the weeks and months following separation, this may not always be the case. Circumstances often change, for example, when either side enters a new relationship or one parent wishes to relocate.

If a dispute does occur in the future and you do not have a legally binding agreement, there is significant potential for the relationship to deteriorate and this may result in a contested court case.

Apart from being dated and signed by both parents, parenting plans have no stringent criteria. Under Section 63C(2) of the Family Law Act, this agreement may include details surrounding the:

• Division of parental responsibility;
• Residential arrangements for the children;
• People with whom the child will spend time;
• Communication arrangements for the child;
• Child maintenance arrangements;
• Dispute resolution process;
• Steps for amending the parenting plan if circumstances change; and
• Other factors related to the child’s care, welfare and development.

No. A parenting plan is not legally binding. This document functions as a recorded parenting agreement but does not hold any legal power. If one parent fails to adhere to its terms, they cannot be enforced.

Therefore, we strongly recommend taking further steps to formalise your parenting plan through the Court.

You can make a parenting plan legally binding by applying for consent orders. Despite being established through mutual agreement and sometimes without a formal hearing, consent orders are still issued by the Court and enforceable.

At Turnbull Hill Lawyers, we can guide you through this entire process. Learn more or contact our team to get started with your consent orders application.

Once a parenting plan has been finalised with consent orders, it can only be modified in limited circumstances. Ultimately, the possibility and process of modifying your parenting agreement depend on the type of arrangements in place.

In general, if both parties consent to the changes, you may:

• Draft and sign amended consent orders that can be issued without the need for either party to appear in court; or
• Establish a new parenting plan.

If one parent disagrees with the proposed modifications or if the parents cannot reach an agreement on its terms, the parent seeking the changes may apply to the Court for a new parenting order. This will follow the same procedure as applying for the original order.

The Court may order changes to the parenting plan if it deems them necessary and appropriate given the child’s best interests.

In deciding what is in the best interest of a child, the Family Law Act requires two tiers of considerations – primary considerations and additional considerations:

Tier 1: The primary considerations are that there is:

1. A benefit to children of having a meaningful relationship with both parents;
2. A need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the consideration of the need to protect children from harm.

Tier 2: The court must consider:

1. The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding.
2. The children’s relationship with each parent and other people, including grandparents and other relatives.
3. The extent to which parents have participated in making decisions about time spent with the children.
4. The extent to which parents have fulfilled their parent’s obligations to maintain the child.
5. The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
6. The practical difficulty and expense of a child spending time and communicating with a parent.
7. Each parent’s ability (and that of any other person) to provide for the child’s needs.
8. The maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
9. The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
10. The attitude of each parent to the child and to the responsibilities of parenthood.
11. Any family violence involving the child or a member of the child’s family.
12. Any family violence order that applies to the child or a member of the child’s family, if:
    1. the order is a final order, or
    2. the making of the order was contested by a person.
13. Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
14. Any other fact or circumstance that the Court thinks is relevant.

The Family Law Act states that we must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

1. abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
2. family violence.

In relation to a child, issues about the care, welfare and development of the child of a long-term nature include (but are not limited to) issues about:

1. the child’s education (both current and future)
2. the child’s religious and cultural upbringing
3. the child’s health
4. the child’s name; and
5. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

In the absence of any risk of harm, and provided it is reasonably practicable, we will then examine whether the parent will spend equal time or substantial and significant time with the child.

If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, we must:

1. consider whether the child spending equal time with each of the parents would be in the best interests of the child and consider whether the child spending equal time with each of the parents is reasonably practicable; or
2. consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.

A child will be spending substantial and significant time with a parent only if:

1. the time the child spends with the parent includes both:
   1. days that fall on weekends and holidays
   2. days that do not fall on weekends or holidays
2. the time the child spends with the parent allows the parent to be involved in:
   1.  the child’s daily routine
   2. occasions and events that are of particular significance to the child
3. The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

In determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, we must consider:

1. how far apart the parents live from each other
2. the parents’ current and future capacity to implement an arrangement for the child to spend equal time, or substantial and significant time, with each of the parents
3. the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
4. the impact that an arrangement of that kind would have on the child; and
5. such other matters as the court considers relevant.

The above factors apply to all children who are under the age of 18 years.