In Australia, the law encourages both parents and other people interested in the care and welfare of a child to agree on parenting arrangements, including where and with whom the child will live, how the child will be financially supported and what that child’s relationship with other family members will be. Indeed, children have a right to spend time with people significant to their care, welfare and development and this can include grandparents and others, to the extent it is in their best interests.
In dealing with child custody issues, the law’s main concern is to ensure that a child’s best interests are met by being protected from physical or psychological harm and having both parents involved meaningfully in their lives if possible. Whether making parenting arrangements is done by parents, or the court is making an order, the key issue is what is best for the children.
Many factors are considered by a court in deciding what types of arrangements are in a child’s best interests. However if the parties can agree on the future arrangements for their children after separation they do not have to go to court. They can make a parenting plan or they can obtain consent orders approved by the court.
A parenting plan under the Family Law Act 1975 (Cth) is a voluntary agreement that covers the day to day responsibilities of each parent, the practical considerations of a child’s daily life, and how parents will agree and consult on important long-term issues about their children. It can be changed at any time as long as both parents agree and they do not need to go to court. Other persons, such as grandparents or step-parents, can be included in a parenting plan.
A parenting plan is not legally enforceable and is different from a parenting order, which is made by a court. However parents who make a parenting plan can apply to the court to make orders by consent in the same terms as the parenting plan. Once made, these orders are legally binding, having the same effect as any other parenting order made by a court.
If parents end up in court at some later date, the court must consider the terms of the most recent parenting plan when making parenting orders in relation to the child, if it is in the best interests of the child to do so. The court will also consider the extent to which both parents have complied with their obligations in relation to the child, which may include the terms of a parenting plan.
What can be included in a parenting plan?
A parenting plan is unique to the circumstances of each case dealing with the care, welfare and development of a child. Except where there are issues of violence or abuse, the law presumes that it is in the best interests of a child for the parents to have equal shared parental responsibility. This means that both parents should have an equal role in making decisions about major long-term issues that affect their children, eg schooling and health care. The parties should also consider an arrangement whereby both parents spend substantial and significant time with the child, provided that this is reasonably practicable and in the best interests of the child eg weekends, holidays and regular days and nights. This provides for both parents to be involved in the child’s daily routine, as well as sharing in special events eg birthdays.
Accordingly, the parenting plan could address the following:
- How the parents will share parental responsibility and consult about decisions eg schools and education;
- Who the child will live with and what time the child will spend with each parent or others such as grandparents;
- How the child will communicate with each parent or other people (eg by phone, email etc);
- Parenting Arrangements for special days, such as birthdays and holidays;
- The process to change the plan if circumstances change or to resolve any disagreements;
- Maintenance of a child; and
- Any other issue about parental responsibility or the care, welfare and development of the child.
It is important to bear in mind that care and financial arrangements for the children in a parenting plan can affect entitlements to child support, income support and family assistance payments. We recommend seeking advice on these matters beforehand.
A parenting plan can also include other issues such as financial maintenance or property arrangements between the separating parties but those provisions will not be legally enforceable unless the parties seek to include them in a court order by consent.
Seek legal advice
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you to try to reach an agreement with the other party without going to Court.
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