If the frequency of questions I am asked about Parenting Plans is any indication, I sense there is significant concern amongst professionals about relying on them to formalize agreements in family disputes. There are many advantages that flow from using Parenting Plans, and I hope that clarity around these would mean that they can be used with greater confidence.
A Parenting Plan is a document that complies with the criteria set out in the Family Law Act, and must be seen in the context of this Act. It is clearly stated that parents are to be encouraged to come to their own agreements, to take responsibility for their parenting arrangements, and to minimize conflict. Court is to be seen as the last resort. (s63B)
As advisors or family dispute resolution practitioners, we have obligations to inform our clients about parenting plans, what they are, what they can cover, and the objects and principles of the Act that apply to parenting matters. (ss63DA 60D 60B)
A Parenting Plan must be in writing, signed and dated. It can be any type of document whether on a serviette at McDonalds, or a long and detailed document drafted by a lawyer, but it must involve the parents, and be free from threat, duress or coercion. It can be varied or revoked by any subsequent written agreement or court order. (ss63C 63D)
There are significant legal ramifications that flow from entering into a Parenting Plan. Where they are inconsistent with a prior order, they will amend the previous court order or Parenting Plan. Where parents are required to attend FDR and consider developing a Parenting Plan, this can postpone the issuing of parenting proceedings in court. If a matter does proceed to court, the most recent Parenting Plan is the starting point for the court’s consideration. (ss 60I 65DAB 64D)
If there is evidence that there is a need to protect a child from harm, and that a parent may use coercion to force the other to agree contrary to court orders, then it is possible to seek an order to prevent variation by way of a Parenting Plan. (s64D(2))
There are many advantages in using a Parenting Plan such as:
- They promote creativity and meet the unique needs of each family;
- They allow for flexibility and changing needs over a period of time;
- They can be short term, to support a trial arrangement and review, rather than a long term commitment in the face of uncertainty;
- They can cover aspects of parenting that may not be considered appropriate for a court order such as family traditions, rituals, religious and cultural practices;
- They are cheap and avoid the problems of Rice v Asplund.
There are also some disadvantages that must be taken into account including:
- They are not orders and cannot deal with matters such as restraints and injunctions;
- There can be issues with enforcement;
- They depend upon a level of trust and co-operation;
- They require a certain amount of effective communication;
- They can give rise to differences in communication and therefore implementation.
So if you are unsure in a particular situation, there are some red flags that would indicate care needs to be taken with encouraging a particular family to develop a Parenting Plan. These would include:
- A history of broken agreements;
- Poor communication;
- Capacity issues such as family violence, substance abuse, and mental health issues;
- A very recent separation and overwhelming emotions;
- Lack of supports.
In these situations access to legal advice or information is important as soon as possible. An early assessment as to any special needs, and appropriate referrals is essential to strengthening and supporting clients who need to be able to make good decisions about their family. Professional input prior to family dispute resolution, during the process, and in regards to the development and implementation of a Parenting Plan, is often crucial to the success of this process. Clients often need coaching, support and input with clear and concise language to ensure their best participation and outcome, as well as ideas for best possible solutions and default positions if events do not proceed as hoped.
In summary, Parenting Plans are a valuable and useful tool to assist families to move beyond separation and to provide them with a pragmatic and unique structure to work within. They provide a great level of flexibility to reflect individual and changing needs and life events. They are cheap and easy to vary. They are more durable when the parents have access to any supports that they might need, and are making informed decisions with the support of appropriate professionals. They benefit from being framed in clear and concise language, and cover not only what the parents want to happen, but also what they should do if things do not go according to plan.
I work with parenting Plans every week, but I am always coming across new and exciting ways to make these documents work better for my clients. If you would like to discuss any of these ideas do not hesitate to contact me at Creative family Law Solutions.