A Parenting Plan must deal with one or more of the following matters:

• the person or persons with whom the child is to live,
• the time that the child is to spend with another person or other persons,
• the allocation of parental responsibilities for a child,
• how parents consult about decisions to be made,
• communication the child is to have with others,
• maintenance of a child,
• how to resolve disputes about the plan,
• how to change the plan to for changing needs of the child parents and
• any aspect of the care, welfare or development of the child or any other aspects of parental responsibility for a child.

A Parenting Order may be varied by a later Parenting Plan, but Parenting Plans cannot be enforced as an Order. When an application is made to a Court for Orders in relation to a child, the most recent Parenting Plan will be considered, if it is in the child’s best interest.

A parenting plan will be unworkable where:

• both Consent Orders and the plan deal with the same subject matter.
• the plan is vague and uncertain,
• the plan is silent on important issues or
• the plan deals with issues that cannot be part of a parenting plan such as Child Support or spouse maintenance.

Why Every Family Should have One

Divorcing parents are often so busy with their own anger or arguing over who gets what to remember their most important shared property their children.   By law, parents have a shared responsibility, which means that both parents must take care of their children’s financial, emotional and physical needs.  Family law in Australia encourages parents to work together on these issues and encourages families to create a “parenting plan” before divorce or the termination of a de facto relationship.

The purpose of a parenting plan is to detail the responsibilities and rights of each parent in order to do what’s best for the children.  A good parenting plan includes a day-to-day schedule for the children,  a break-down of time that each parent is to spend with the child for every day of the year, including all civil, religious and school holidays, payments for all of the various expenses, including medical, dental and after school activities, and how the parents will settle future disagreements. The court cannot grant a divorce order until it is satisfied that proper parenting arrangements are in place.  If parents are unable to create a parenting plan on their own, the court will do it for them.

The best parenting plan is one made by the parents themselves. Some parents are able to do this on their own, or with the help of a mediator or another trained professional in other methods of Family Dispute Resolution.

While a parenting plan is an agreement between the parents and cannot be enforced by the courts, there are legal remedies if a parent does not follow the plan.  The other parent may turn to the court and the court may make new orders based on the original parenting plan.

Below are five reasons to make a parent plan.

Everybody knows where they stand

A good parenting plan will include everything from which nights the children sleep at Dad’s house to what religion they will be brought up in to how the parents will settle disagreements between themselves. This limits places for disagreement and fighting between parents and gives them the tools to resolve disputes when they arise.  There’s no disagreement about where the kids will go for Christmas because it’s written in the plan.

More importantly, the children have stability. No matter what the arrangement, divorce or separation is hard on the children.  But having a regular routine, knowing that both parents agree on a particular decision and maintaining a loving relationship with both parents will make the transition and the coming years  easier.

Building Trust

Most likely, there is a lot of mistrust with the termination of the relationship.  Oddly, a parenting plan can help parents rebuild their faith in one another.   Creating the plan may also allow parents to hear from their children what they need and want.   Children, who may feel insecure in the new family setup, may be able to find a way to overcome emotional insecurity and learn to trust the family relationships again.

Starting Fresh

Laying out the plan ahead of time is not just good for the kids. it’s good for the parents too.  Following divorce or the end of a de facto relationship, parents have their own issues to cope with – living on one income, taking care of a home, and perhaps, even starting a new relationship.   Each parent needs to find time for him or herself to begin fresh but still be a responsible, caring parent.  A parenting plan that lays out the when and where, and leaves less room for surprises creates stability and structure for the parents as well as the children.

Financial Planning for Present and Future

A good parenting plan will detail who covers which expenses.   In addition to the basics like food and clothing, there are many “extras” that also need to be considered, including special medical and dental expenses, after-school activities and summer camp.  As children get older, parents need to think about driving lessons, university fees, and even weddings.  A good plan will take the future  and not just the current month or year  into consideration.  The current parenting plan doesn’t need to have all of these expenses included already, but it should provide a way for the parents to work out the division of these costs as they arise.  For example, parents may agree on percentages of incomes to be paid to a university fund for each child.    This prevents arguments between the “ex’s” and allows both sides to properly plan for the future.

A method for working it out

No plan is foolproof, and one of the most important parts of a good parenting plan is the mechanism for settling disputes.  For divorcing couples, this might even be the first time there is a plan for such inevitabilities in place.  Each family must figure out what works best for them.   Some may settle disputes by meeting over coffee in a neutral place.  Others may feel an outside mediator is necessary.   In many cases, just knowing a system for resolving problems exists helps families work through any difficulties that arise.

And one last note…..

Despite the plan, parents should remember that parenting doesn’t always follow a plan, despite the good intentions of both parents.   It’s inevitable that one parent will suddenly have an amazing work or vacation opportunity and ask the other parent to fill in, or a child will want both parents to be involved in a special project.   Parents need to remember that the children are at the center of any good plan.  They are not machines, they can’t always follow the adult rules parents make for them and they have their own needs and wants.   Parents need to remain open-minded, flexible and fair, even if every detail is not written into the plan.

Australian law holds both parents responsible for their children.  Even when parents separate or divorce, both parents are obligated to take care of their children financially, providing them with all of their basic needs, education and health.  A parenting plan is an agreement between the parents of the children, laying out each person’s responsibilities, obligations and commitments.

Division 4 of the Family Law Act, 1975 details what may be included in a parenting plan, but the list is not exhaustive.  Generally, a parenting plan should include the division of responsibility for the children, whether or not there are third parties involved, maintenance for the children, how decisions are made, the forms of communication between the parents and between the children and the parents (when they are with the other parent), and ideally, how future disputes will be settled.  A primary goal of the plan is to lay out as many of the possible issues involved in parenting in order to allow for future changes and avoid going to court.  At all times, the children’s best interests should be kept in mind.

A good parenting plan is very detailed.  It lays out an annual schedule of visits, including who picks up and drops off the children.  A parenting plan also discusses how big decisions, like where the children will go to school or what religion they will be raised in will be made and by whom.  It should also give space for each parent to make certain decisions independently when the children are with them, ie what do they kids eat for breakfast or how much t.v. do they get to watch.

In order for the parenting plan to be legal, it must be: (1) written; (2) made between the parents; (3) signed by both parents; (4) dated and; (5) deals with the issues listed above and in section 63(C)(2) (link to this section).   A parenting plan is not legally binding, however, unless it is registered in court.

Parents Australian law encourages parents to come to a parenting arrangement or parenting plan on their own.  Many parents, however, are unable to come to an agreement and end up turning to the courts to resolve their parenting dispute.  The court may make a “parenting order”, telling the parents exactly what the parenting arrangement must be.   These may be orders which the parents consent or agree to (consent orders) or the order may be imposed on the parents following a trial or court hearing.  Finally, there are cases that combine parenting orders by consent along with a parenting plan created by the parents.

The primary question the court will ask is what is in the best interests of the children.  The court will look at many factors to decide what is in the child’s best interests, but the two main considerations are the benefit of the child having a meaningful relationship with both parents against the need to protect the child and the need to protect the child from physical or psychological harm as a result of abuse, neglect or family violence.

Other factors the court might consider:  the child’s opinion, his or her relationship with each parent and other relatives, such as grandparents; the particular parent’s role in raising the child, each parent’s financial support, and the lifestyle of the parents.   But the law also allows a judge to consider any other fact or circumstance that the court thinks is relevant”, giving the court a good deal of discretion when giving a parenting order.

No two families alike, especially no two divorcing families.  So parenting plans will differ, depending on the size of the family, religious affiliation, professional status of parents, income, educational needs and location, just to name a few.  The first step to creating the plan is simply sitting down together and talking.  If parents were unable to open the lines of communication during marriage, this might be an even harder task now.  But both sides must remember that the children’s needs and best interests are the priority and they come first in the parenting plan.  With that in mind, below are some essential issues that every plan should have, along with some extra ideas that families might want to consider for their plan.

A schedule for the children

This is a schedule for the children for school vacations, national and religious holidays and day-to-day living.  In the ideal, it looks towards the future, so schedules can be created on a yearly basis, with holidays and visitation days switching each year (ie Mom has the children for Christmas in odd years and Dad has them for summer holidays in even years).

Decision Making

A good plan should determine the authority and responsibilities of each parent.  The parenting plan should determine who makes which decisions.  Some parents decide that when the children are with a parent, that parent makes day to day decisions.   For young children, this might include what they eat, how often they bathe, how homework is done and when they go to sleep.  For older children decision-making will involve issues of computer and cell phone use, dating, curfews, car use and more.

The plan should also consider long-term, “bigger” decisions and give authority to either one or both parents on matters like education, health, extracurricular activities and religious upbringing.  The parents might agree that regardless of how decision-making is divided up, either parent is allowed to make emergency decisions regarding the children’s health or safety.

Taking care of the children

The parenting plan should take into account specific parenting responsibilities.  Sometimes issues come up because both parents want to be involved (for example, meeting the child’s teacher) and sometimes neither parent is able to take responsibility (for example, who stays home when a child is sick).   What about medical and dental appointments, or transporting the children between homes?   Whether there is one child or four, these questions come up regularly.  Some plans state that the parent in charge that day is responsible for these tasks.  Other plans use the “divide and conquer” method, giving dad all medical and dental tasks, say, while mom deals with all educational responsibilities.

A Method for Communicating and Sharing Information

Despite all the effort, parents will need to communicate with each other and share information.  Online calendars and schedules that can be shared and updated are a great method for keeping each other informed of changes.   Emailing and text messages enable fast communication when a quick decision needs to be made.  The plan should detail the method or methods chosen and the expectation that parents will make every effort to keep each other in the loop.

Financial Responsibility

Laying out the financial commitments and rights of each parent is an important part of the plan.  If one parent is paying child support, the plan should explain what this includes.  The plan should also determine who covers additional expenses for the children like summer camp, public transportation, special activities and pocket money.  Are both parents paying into a college or savings fund for each child?  How much should each parent put aside?  Every family is different so parents should sit down and work through as many of the expenses they currently have or foresee having in the future.

A Way to Manage Disagreements

No plan is perfect and sometimes disagreements arise.  Parents need to have a method in place for working through these disagreements.  The plan can require parents to first try working it out on their own or turning to mediation.  When parents can’t resolve their differences, arbitration may be required.  These are preferred alternatives to court because they allow each parent to be heard and help the parents hand-craft a solution that satisfies everyone.  Generally, court should be the last resort.

Evaluating and Changing the Plan

Parents and children change over time.  Sometimes it will be necessary to make changes to the parenting plan.  What happens when one parent needs to relocate?   What happens when the children get a bit older and want to make changes to the plan?  The plan should have a system for dealing with the changing needs of the family members.  Some plans require an evaluation every year.   Others might require a family discussion to get input from everyone involved.  Whatever the approach, it should be described in the parenting plan and followed. The new plan can also be submitted to the court for orders.

An experienced family lawyer can help families create a plan that’s appropriate for them.  Below are some suggested templates for a parenting plan.

A good parenting plan should discuss the many possible surprises and changes that might occur  a parent relocates, a medical emergency, financial circumstances change but no plan can foresee every possible need for modification or adjustment.   Section 63(D) of the Family Law Act, 1975 allows a parenting plan to be “varied or revoked by agreement in writing” between the two parties.

If a parenting plan was registered with the court, and then one or both sides wish to modify it, court papers must be filed.  Contact an experienced family lawyer to find out how to modify a current parenting plan.

Each of the parents of a child has responsibility for the child and a court can make an order which alters aspects of a parents responsibility toward their child. For example, a court could give one parent sole responsibility for decisions concerning a child’s education

As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.

Shared parental responsibility means parents must consult with each other about major long term issues affecting the child, such as education, religious upbringing and major medical treatment. Shared parental responsibility does not mean children must spend equal time with each parent, however they might spend substantial and significant time with the child. Parents will not spend equal time with their children if it is not reasonably practical or in the child’s best interests.

Substantial and significant time means:

• the time the child spends with the parent includes both weekend and week days and
• the parent is able to be involved in the child’s daily routine and occasions and events that are important to the child or the parent.

Case: What is reasonably practicable in Mt Isa?

A family breakdown brings about many emotional issues, parenting arrangements are probably the most difficult to resolve.

• Where will the children live?
• When will each parent get to see the children?
• How long will each parent have with the children?

These questions form the basis of all parenting arrangements, but the key issue for the arrangements is what is in the child’s best interests?

Parenting arrangements after separation can be finalized by way of Consent Orders or a Parenting Plan.

The lawyers at Byron Bay Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. We can help you and your family develop parenting arrangements that recognize your child’s best interests. We can help provide the stability your children needs and minimise the impact of the changes on their lives. Formalizing parenting arrangements is also beneficial where there is a high level of conflict and a limited ability for the parents to communicate amicably between themselves.

Sometimes arrangements are based on informal verbal agreements with your ex-partner, but in most cases it is best for these arrangements to be written and recognised by a Court. We consider it is best for parents to have made arrangements in advance for each parent’s time with the children, particularly for special events such as Birthdays, Easter and Christmas.  An agreement can help avoid disputes in the future about parenting arrangements for the children, reduce conflict and enhance security and stability for children.

Once agreement is reached we can draft Consent Orders so that the agreement is formally recognised by the Australian legal system.

If negotiation between the parties does not resolve all outstanding issues, we can assist you through arranging and assisting your participation in mediation. If an Agreement can’t be reached, or in the case of extenuating circumstances then Court processes might be required. Our highly experienced litigators will exercise care and compassion combined with the determination and expertise required to obtain the best results.

Byron Bay Family Law is a Melbourne family law firm.

Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Many separated parents have informal agreements in place about the parenting of their children. The parents reach agreement with or without the help of mediation or counselling services. Neither parent can enforce an informal agreement against the other.

Parents can also apply for court orders by consent. Agreement is usually reached through negotiation between the parents with the assistance of dispute resolution practitioners or lawyers.

Seek legal advice before reaching any agreement about where the children live and where they spend their time, these arrangements can influence property settlement matters and child support.

Divorce is painful for everyone concerned, especially children. During this challenging period, children need love, support and contact with both parents.

Creating certainty about the future is crucial for children when their parents separate. Parents coming to a mutual agreement about parenting arrangements can help to provide clarity and certainty.

When parents agree

Following separation, parents may agree on a parenting arrangement that works for them and the children. The agreement should focus on providing for the needs of the children and may include financial arrangements.

A parenting arrangement can be agreed orally, in writing or put into a formal court order known as ‘consent orders’ (which requires an application to the court but does not require a court appearance).

When parents don’t agree

If parents can’t agree on parenting arrangements, they can apply to the court for a parenting order. Usually (except in the case of family violence and other specific circumstances), parents are not permitted to apply for a parenting court order until they have first attempted family dispute resolution (mediation).

The court’s primary concern will be to protect the children from psychological or physical harm. The court will address this before deciding about parenting arrangements.

The Australian Government has published a book to help develop parenting plans. This resource can help prepare clear, practical parenting arrangements that are focused on what’s best for the children.

What to consider when creating a parenting agreement?

When making parenting arrangements, parents may consider a range of issues including:

• The capacity of each parent to provide day-to-day care?
• The age of the children?
• The arrangements for the children before and after school and during  school holidays?
• Will the children spend their time with other significant people in their lives, like grandparents or other relatives?
• The children’s educational needs?
• Any cultural considerations?
• The special needs of the children, including educational and medical?
• The children’s wishes, having regard to their age and stage of development?
• Other practical considerations such as transport and accommodation expenses?

While a routine may be best for your children overall, flexibility is likely to be an essential ingredient of a parenting agreement.

Relocating with children

If you are thinking of relocating with your children at a distance that would dramatically affect the time they spend with the other parent, you will need to come to an agreement with the other parent. If agreement is not reached, an application to the family law courts seeking permission to relocate the children will be required.

The proposed relocation destination may involve moving intrastate, interstate or overseas. Consider how the relocation will affect the children’s relationship with the other parent and ask yourself the question ‘Would the move be in the children’s best interests?’ – the court will ask the same question.

What’s next?

Consider what is best for your children’s short-term and long-term wellbeing.

Work out what concerns need to be addressed in your parenting arrangement.

Decide whether you want the parenting agreement to be an informal oral or written agreement, a parenting plan signed and dated by both parents or a court order obtained by consent or by order of the court (judge made order).

Contact an accredited family law specialist or family dispute resolution practitioner to obtain the advice that you need to resolve your post-separation parenting issues.

Each of the parents of a child has parental responsibility for the child, however a court may make an Order to override this. For example, a court may give one parent sole parental responsibility for decisions concerning a child’s education.

Where there is an Order for equal shared parental responsibility then the parents must make joint decisions about major long term issues, such as education, religious upbringing and major medical treatment.

The Family Act 1975 ensures that children maintain their relationships with both parents and guarantees both parents the right to spend time with their children, all in the best interests of the children.  One of the major objectives of the Act is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.

Today there is an assumption of shared parental responsibility between parents for their children.   This responsibility includes all of the “duties, powers, responsibilities and authority” which parents have by law regarding their children.  Section 61DA states that when a court makes a parenting order, it “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”.  While the child may live primarily with one parent, both parents have a role in his or her ongoing, daily life.

“Equal” time v. “substantial and significant” time

If parents have shared responsibility for their children, they should also have shared time with their children.  But how much time is the right amount?  How much is fair to each parent?  And what is reasonable to expect from the parents and from the children?

The law requires the court to first consider providing “equal” time to each parent.  A schedule with equal time might involve children living with the mother one week, then the father the next week.  In some families, the children may spend Sunday through Wednesday at their father’s home and Wednesday night through Sunday morning with their mother.  The court weighs two factors in order to determine if the child should have equal time with each parent.  The court must ask if spending time with each parent is in the child’s best interests and is it “reasonably practicable“?  A court might very well determine that it’s best for the child to have equal shared time with each parent but since they live 300 miles away from each other, this is not feasible.  Only if both of the above criteria are met can a court consider giving a parenting order that grants equal time with the children.

If there is (or will be) a court order giving shared responsibility to both parents, but the court does not grant an order for equal time, the court can consider giving an order for “substantial and significant” time.  Again, the considerations for giving this type of order are whether this is in the best interests of the child and whether it’s practical.

If there is a conflict between what is good for the child and what is fair to the parents, the child’s welfare comes first.

What is “reasonably practicable”?

The court will weigh a number of issues to decide if it is practical for the parents to have equal time or substantial time with the children.  These include:

• The distance between the two homes.  If one parent lives in Perth and the other in Sydney, equal time will be difficult to establish.
• The parents’ present and future ability to work out an arrangement for the children to spend equal or substantial time with each parent.  For example, in a case in the United States

What is “substantial and significant time”?

The law also clearly delineates what substantial and significant time is, making it clear to the courts what the parenting order should include and letting parents know ahead of time what is to be expected.  Significant time goes beyond a nice weekend together once a month, or dinner every Wednesday night.  Parents who are given substantial and significant are expected to:

•  spend time with their children on days that fall on weekends and holidays as well as regular weekdays;
• be involved with the children’s daily routine;
• be present at occasions and events that are significant to the children (school graduation, visiting day at camp or school, dance recitals, end of year sports games, etc.).

Similarly, the parent needs to include the children in events and occasions he or she considers significant (special event at work, promotions, birthdays).

The court can also consider many other factors in determining if the children are spending substantial and significant time with the non-custodial parent.

See the child custody blog for recent cases and legislative changes on issues of parenting and shared time.