In my discussions with professionals working with family disputes, many are reluctant to refer their clients to mediation on the basis of their experience that the agreements reached are not worth the paper they are written on. This demonstrates a lack of understanding of the nature and advantages of parenting plans, and the options available for formalizing agreements.
The Family Law Act encourages parents to reach agreement regarding parenting arrangements, and to use court proceedings as a last resort.[i] This requires them to consult with each other regarding the issues arising from their separation, and make a genuine effort to work towards a joint decision.[ii]
A parenting plan is a written record of such an agreement, that must be dated and signed by both parents, and must be made free of threat, duress or coercion. [iii]
It can cover any of the matters that can be the subject of a parenting order including parental responsibility, where a child might live, how they might communicate with the other parent, how much time they might spend with the other parent and any other important person in their lives, how they are to communicate about important issues arising regarding the child, the sharing of financial support, and how they might approach any of these issues if they had differing views as to what was best for the child. [iv] It can also cover any other matter that the parents feel is important in their circumstances.
If a parent approaches an advisor, being a counselor, lawyer or dispute resolution practitioner, then they are required to be provided with information about the advantage of developing a parenting plan, and the type of parenting matters that it can cover. They are also required to be advised about the approach of the court to parenting matters. [v]This would include the consideration of the importance of both parents being involved in all important aspects of a child’s life including decision making, and different types of time arrangements. It should also cover the preference under the Family Law Act, if it is in the best interests of the child and reasonably practical, is for the parents to have shared care or equal time, and if not to consider substantial and significant time.
Whatever arrangements are discussed they must always be in the best interests of the child. They must promote a meaningful relationship between the child and both parents as well as other important people, but above all they must protect the child from any actual or potential harm. If relevant, advisors must discuss the very broad definition of family violence under the Family Law Act, and the impact of this on the best interests of the children.
Parenting Plans provide the opportunity for flexibility in arrangements to suit the unique features of each individual family, as well as where they are at in the separation journey.
Many aspects of parenting arrangements are considered important to particular families but would not be appropriate to be included in court orders. There may be factors that both parents agree should apply to their parenting arrangements overall, that would not be included in court orders as they would be difficult to enforce by the legal system. For example, there may be family traditions or rituals, religious or cultural practices that have special meaning to that unique family context. The parents may have a very clear idea of what these agreements mean, in contrast to those outside the family. Parenting Plans provide for this level of creativity and flexibility.
Families have differing needs at all stages of the separation journey. What suits their needs immediately following the breakup of the family may vary in the short, medium or long term. The parenting arrangements need to have the flexibility to meet these changing needs, and court orders are cumbersome, expensive and difficult to change. Parenting Plans are easy to vary and can provide the opportunity for review when necessary, either in advance or in response to developments along the separation pathway.
The options for parenting after separation are infinite, and each family with their individual needs will benefit from arrangements that reflect their unique characteristics and needs. The court process has a reasonably rigid approach to parenting largely due to time constraints and the notion of precedent. Parenting Plans promote the opportunity for diverse responses and avoid the constraints of stereotypical arrangements.
The smooth operation of Parenting Plans does require a level of trust and commitment. Where this is missing court orders are necessary to provide stability and security for children. Where this proves elusive, and the matter moves from the arena of the Parenting Plan to the court process, then a previous Parenting Plan is the starting point for the court’s investigation.[vi] Where this develops over time, then a subsequent Parenting Plan can be a useful tool to amend a previous court order.[vii]
Parenting Plans have many advantages and their use in family law matters reflects the objects and underlying principles of the Family Law Act. [viii] They constitute a very important tool to empower parents to manage their parenting arrangements after separation, and to reflect the individual needs of their family. They do have limitations, and care must be taken in drafting, for clarity and certainty, and to take into account changing circumstances. I find that in most circumstances (especially where there is no sugestion of threat, duress or coercion) they are definitely worth the paper they are written on!
[i] S63B Family Law Act
[ii] s65DAC Family Law Act
[iii] s63C(1) and s63C(1A) Family Law Act
[iv] s63C(2)
[v] s63DA
[vi] s65DAB
[vii] s64D
[viii] s60B