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The practicalities of parenting when separating can be complex and naturally you will have concerns about how time with your children will be shared. You may not be aware that you can commence negotiations about how this will occur, at any point immediately from the date of separation.
If you are in this position, and you think you will be able to come to an agreement between you, without the intervention of the Court, you have two options:
- A Parenting Plan; or
- A Parenting Agreement (otherwise known as Parenting Orders)
This article will unpack both options for you, including the pros and cons, so you can become familiar with the two pathways for you here in Australia.
What Is A Parenting Plan?
Parents who have decided to separate and continue to be able to communicate well enough, can work together on a Parenting Plan.
A Parenting Plan is an informal document. There is no set format that needs to be followed and no criteria for what must be included. That being said, it can be hard to think of all of the elements you should consider.
Below are some inclusions we recommend covering in a Parenting Plan:
- A schedule outlining how frequently each parent will have the children. Include details such as which days each parent will have the children.
- Arrangements around special events. E.g. holidays, birthdays etc. Will this be alternate years? By negotiation? For example, a shared Easter Sunday (half day each)?
- How pick ups or drop offs will work. For example, will you meet half-way between homes? Will the parent with the child drop them to the other parent? Can a grandparent do the drop-off? etc.
- If shift work needs to be factored into the care of the child/children, can they be left at home alone? Can another family member take over the care of the child?
- What will happen in the case of travel? How will time be shared and permission granted?
- What happens if one person needs to move/relocate further away?
- Going forward, how will changes to the plan be raised/negotiated?
- Any other issues you feel strongly about (medication, sleep overs, dating, religion etc).
It is helpful to include a fall-back section within your Parenting Plan. Set out what will happen in the event both parents can’t agree upon a certain arrangement. For example, if the mother has care of the child on the weekend that Father’s Day falls, the father may ask to swap weekends or another similar arrangement where he can be with his child for this special occasion. If the mother declines his wishes and there is nothing in the plan about the father having Father’s Day with the child, then the fall back position might be set that mum retains care because that was her scheduled weekend to care for the child. Or, it may be that you both determine that on Father’s Day the child is to be dropped to the father the morning of Father’s Day and spend the full day with their father.
Because children grow and have different needs, what you set in the Parenting Plan will need adjusting over time. We recommend that a date for review is set for any Parenting Plan. Particularly important where the children are under school age (5 or younger).
When deciding how children will spend time with each parent, consider:
- Their physical needs (e.g. breastfeeding child);
- Your child’s child care/school location in relation to each parent’s home;
- The hours of school attendance when considering actual time with a parent;
- Extracurricular activities;
- Any additional physical, emotional, learning needs any child may have; and
- Access and time to spend with siblings.
While a Parenting Plan is your agreement, it is wise to get a family lawyer to have a look over your Parenting Plan. With many years of experience, they will be able to give advice about potential immediate and future issues they can see and how the wording of the Parenting Plan could be changed to ensure the true intent of the plan is recorded.
Is A Parenting Plan Legally Binding?
No, a Parenting Plan is not legally binding. This is an important consideration when deciding whether it is the best choice for yourself and your children. A Parenting Plan is based on good faith and there are no legal consequences for any non-adherence or breach of the plan by either parent.
Flexibility is one of the major benefits of the Parenting Plan. It can be changed as needed and adapted as parenting situations evolve, lives change, children grow and new scenarios emerge, without the need to get the Courts involved.
A Parenting Plan works if both parents are able to communicate effectively and continue to operate in good faith.
If however, there is a falling out, which can happen for example when a new partner comes on the scene, then the fall back position of the Parenting Plan becomes even more important. The trouble is when one parent decides to not follow the Parenting Plan anymore, or they become difficult to communicate with or even withhold the child or children from the other parent.
If this happens, you will need to start back at the beginning with negotiations, a mediation and attempt to create a new Parenting Plan you can both agree upon. You may even decide that there is a need for a Parenting Agreement in order for you to both continue parenting effectively moving forward.
Example Of A Parenting Plan
It is not uncommon for me to have appointments with people who have separated from their partner or spouse just days earlier. As one example, there were parents looking to put a Parenting Plan into place. She sought our advice and was pregnant with their third child. She was planning to move out of the family home and wanted to be confident that she could continue to have significant time with their two existing children when she wasn’t working.
With two young children and another on the way, in this scenario, as both parties were communicating well, they were able to make a plan they could agree on. They originally planned for each parent to care for the children week on, week off.
While there were additional details in play, I advised this client to consider the following:
- The ages of her existing children;
- The additional needs that will arise when the baby is born;
- Her current hours of employment; and
- Her plan to return to work when her third child is born.
Given she was working full time across four days, Monday to Thursday, and intended to return to work three months after the birth of her baby, it may not have been suitable for her to have the children only on her days off, as originally planned. That is because at some point, she might need to have time outside of work, to allow some time for self care, especially with a newborn.
Importantly, newborns are not generally removed from their mother’s care for long periods like a week on, week off arrangements. And, the law states that very young babies and children should have ‘short and frequent’ contact with their other parent, as they are so dependent.
Ultimately, after assisting her to come up with a few different scenarios, she and the father discussed the options, coming to a decision they were happy with. They decided that she would care for their two children on one of her days off plus three days of her working week. The father would care for the existing children on the other three days of every week. The baby would remain in the mother’s care for six days of each week, with the father having the baby for one full day and additional scheduled times across the week.
Secondly, as the two children were so young, with a baby on the way, an inclusion for a review date to be set within the Parenting Plan was essential. This would be a recommendation for most clients with young children.
When there are such young children involved, you can be certain their needs will change significantly over the next 18 years. Making a Parenting Plan when they are aged under 5 to last them until adulthood is not realistic, or in their best interests.
Without this detail in the Parenting Plan, and without considerations of what would be beneficial for each of the children, the arrangement they had originally planned, may have become troublesome over time for both her and her children.
We provided some other recommendations for him to consider and present to his ex. From there, they added the additional considerations in, including the review date and added to their Parenting Plan. Then she ran it past her family lawyer and he ran it past us, and now they are both confident with their arrangements because it is a more comprehensive Parenting Plan that takes into account far more than the original plan.
The alternative to a Parenting Plan is a Parenting Agreement.
What Are Parenting Arrangements?
You will hear these three terms referred to interchangeably – Parenting Arrangements, Parenting Orders and Consent Orders. Each has the same meaning. They are a formal plan for how separated parents agree they will manage the parenting arrangements for their child/children moving forward.
Unlike a Parenting Plan, the key differentiation is that Parenting Arrangements (Orders) are a formal document that is presented to the Court, who then approves it, or requires changes and a resubmission before approving it.
Are Parenting Arrangements/Orders Legally Binding?
Yes, a Parenting Order is a legally binding document. It is a Court Order and as such, both parents are held legally accountable to it.
Opting for this formal approach comes with both benefits and some potential pitfalls as well. Because it is legally binding, Orders have less flexibility than a Parenting Plan.
Parenting Orders relating to parenting arrangements are in place until the children turn 18. It is not possible to simply make quick changes to the Orders as life evolves. That being said, Orders can be drafted in a way that can say “As agreed but failing agreement…(fall back position)” so there can be some flexibility.
However, if the circumstances change or the other parent is not being flexible, then the fall back position is what has to be followed. For changes to be made, there needs to be an application made to the Court and approval given. This can be costly and take considerable time. If you have older children, this may not be a problem, however if you have very young children, it is likely you will need to make changes at least once when the child begins school.
If both parents cannot agree on an aspect of their Parenting Orders, for example, if you and your former partner can’t agree on who will have the child on their birthday each year even after attending Mediation, then the alternative is for one parent to start legal proceedings for the Court to make that decision on your behalf. While the goal in most cases should be to avoid the significant time delays, expense and stress that comes with legal proceedings like these, sometimes it may be necessary.
If your former partner has issues with drugs and alcohol, or if they require consistent medication for their mental wellbeing, then the legally binding nature of Parenting Orders may appeal. The need to be responsible with drugs and alcohol or even medication can be written into a Parenting Plan or Parenting Orders. If one parent makes the decision not to adhere to the agreed plan, then a Parenting Plan does not give you the grounds to legally challenge this. Parenting Orders do.
Parenting Orders are also helpful where the Parenting Plan that was originally set, is not being adhered to and one parent needs the parenting agreement to be legally binding, for consistency and the children’s best interests.
Examples Of A Parenting Agreement
I had a different client in recent months who had been separated from her former partner for several years. They had a Parenting Plan in place but their situation had changed. Her children’s father had a new partner.
In addition to the children between them, the father’s new partner had children from a previous marriage. Up until recently both parties had acted in good faith and for the most part followed the Parenting Plan. Where changes had to be made they had been able to communicate effectively to reach outcomes that worked for them both and the children, most of the time.
With the new partner and her children added to the dynamic, things had become complicated. The new partner had a Parenting Agreement in place for her own children with their father and so managing all of the children’s schedules was complex.
My client had become frustrated by how frequently the Parenting Plan was being disregarded. Because it was not legally binding, the new partner did not feel she needed to keep to the plans that were in place. The children were frequently being brought back late, days were being swapped regularly and requests to have the children for interstate holidays were becoming an issue. My client felt she had tried to express how these changes were negatively impacting her time with the children and also her ability to plan her own schedule. She was looking for a way to make her Parenting Plan enforceable and we decided to go down the route of creating Parenting Orders. Given her children were now teenagers, it was very possible that the new agreement put in place would meet the needs of the children until they each turn 18.
By choosing to put Parenting Orders in place, both families were able to have greater certainty around their own schedules and could move forward knowing that everyone would be more inclined to keep to the new arrangements. This is because, if the arrangements in the Parenting Orders weren’t kept, this is considered a breach of the agreement. Unlike a Parenting Plan, if someone breaches Orders it can be dealt with quickly in the Courts with minimal time lost.
Which Option Is Best For Your Circumstances?
Every separating parent’s circumstance is unique. There are times where it is clear that one of these two options is better than the other but there are also many situations where either would work. Even with the potential pros and cons for each.
A family lawyer can help by looking at your situation and giving advice about which option might be best for you. Sometimes people come to us and we review their Parenting Plan and provide them some advice that they can either act on, or not. Other times we assist in drafting either the Parenting Plan or Parenting Orders.
Generally speaking, if you and your former partner are able to communicate effectively, if you are both entering into discussions in good faith, then a Parenting Plan is often a great place to start. It provides a high level of flexibility and allows you to make changes together as the child’s needs change up until they turn 18. Just ensure you have it reviewed by a family lawyer as we can identify the potential pitfalls that can be avoided. Sometimes one appointment with our family lawyers is all that is needed for peace of mind.
Parenting Orders are often recommended if there is a high level of conflict between both parents but an agreement can be reached with the assistance (and barrier) of a family lawyer. This can be a good way to avoid losing any decision making power you have by the Court making these decisions for you
In a situation where there is an AVO (Apprehended Violence Order), but it is deemed that the children are safe with the parent, then a Parenting Plan is a way to get both parents access to all children quickly, without having to wait for police and other legal interventions.
And, sometimes people will start with a Parenting Plan and down the track decide that you both would like to make it legally binding, which can be done by submitting your plan to the Court. However, to avoid delays and additional costs, have it reviewed by a family lawyer first. Because, having to resubmit the application requires additional steps that are not otherwise required and getting legal assistance to do that is more expensive than if you had sought family law advice from the start.
Ultimately, you as parents will likely be aiming to make a decision between you about what is best for your situation and your children moving forward. If you find that difficult, we can assist with advice about how you approach that while still communicating with your ex. Alternatively, we can negotiate on your behalf.
Whether you decide to go down the path of a Parenting Plan or Parenting Orders, having an experienced family lawyer to run your arrangements by, will benefit you throughout the process, not just the final outcome. Our experience and knowledge can help you identify potential future scenarios for consideration, and can aid in the wording of documents to make sure your application is going to be accepted, and you both understand what the arrangements will look like. And, if there is high conflict, we can also support you through the mediation process.
If you are able to come to an agreement together, you may only need to see a lawyer for a single session in order to finalise the document and have it checked for future issues. Importantly, a family lawyer’s involvement does not take the decision making process out of your hands. We are simply there to educate you, and advocate for you and your children. What you do, when you have the benefit of family law advice, is then entirely up to you.
Have you recently separated or are you considering separation?
Do you have concerns or questions that you need answers to?
We can help you wherever you are based in Sydney. We have three office locations – Penrith, Norwest & Sydney CBD – as well as phone and online consultations if preferred. Reach out to our team on 02 47 222 050.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.