Is Your Current Parenting Arrangement Binding or Are You In Line for a Surprise When You Most Want Co-Operation?
Posted: 17th April 2015
Posted in: News
Posted by: Dean Evans, Partner
Will your parenting agreement “stick” – A review of Parenting Plans and Parenting Orders
Are you of the view that you’ve achieved a binding parenting outcome with your former partner or spouse? Unless you have parenting Orders, your agreement is informal and in turn, unenforceable against the other party.
When parents determine to separate, but intend to continue co-parenting their children from two separate households, they usually need to consider how the parenting outcome negotiated between them will be recorded and documented so that each parent and the children will have certainty about what role each parent will play in the children’s lives.
Pursuant to Section 63B of the Family Law Act, parents are encouraged to reach an agreement about matters concerning their children and when an agreement can be reached, there are two options available to parents to resolve parenting outcomes.
The options include:
- Drawing up a parenting plan and each signing the document, with the document setting out the way in which the parties will co-parent the children; or
- Applying to the Court for Consent Orders, for Orders that will mandate the way in which the parties will co-parent the children.
Every day, we deal with clients who have made a decision to use one of the above options, but more often than not, they are unsure of the effect of each outcome and which one best suits their situation or whether the option they’ve chosen will withstand the test of a co-parenting relationship with their former significant other.
A Parenting Plan is an informal agreement reached between the parties, where the parenting outcome is documented in a written format and each party signs the document.
Whilst parenting plans can be helpful for parents who continue to have a high level of trust in one another and can work together respectfully when it comes to children’s issues, the difficulty with parenting plans is that they are neither binding nor enforceable.
In other words, a party may enter into a particular parenting outcome in a parenting plan, but can at any point in the future, change their position and practically give effect to a different parenting outcome, even without the other parent’s consent. The problem for the parent who was satisfied with the arrangements contained in the plan, is that they are unable to enforce the plan because it was never resolved formally into parenting Orders.
More often than not, clients present at our office with a parenting plan (either drawn up directly between the parties or with the assistance of a Family Dispute Resolution practitioner) and believe that because the other parent has “breached” the parenting plan, they have recourse to enforce the agreement. Unfortunately, this is not the case unless the parties have formally resolved parenting matters in a parenting Order.
If you and your co-parent can reach an agreement in relation to parenting matters, the only way to ensure that the outcome is binding and “sticks”, is to formally resolve the parenting outcome in a parenting Order.
In order to obtain parenting Orders, parties can apply to the Court to have their agreement made into formal Orders, and provided that the Court is satisfied that the proposal is in the best interests of the children, the Court will make final parenting Orders in the terms submitted by the parties. Given the Court adopts the view that final parenting Orders ought not to be disturbed unless a party can demonstrate “a significant change in circumstances”, parties can usually be confident that the parenting Orders will remain in place and be binding and enforceable until the children turn eighteen (18).
Parties with parenting Orders can apply to the Court for enforcement if the other parent unilaterally changes the parenting arrangement or contravenes the Orders, and if the other party is found to have committed a breach, the Court can sanction the behaviour and impose penalties on the non-compliant parent.
If you’re in doubt about the best way to document your parenting outcome, you should seek legal advice at the earliest opportunity, as it is often easier to achieve co-operation from the other parent when the agreement is first reached, rather than making an approach to do so at some later date. Often, by the time a party has cause to question whether their parenting agreement is binding or not, an issue has already arisen and it is then significantly more difficult to negotiate formalising the outcome.
Sometimes, it’s worth investing having the matter resolved properly, than dealing with the repercussions of a parenting plan several years down the track.
If this article leaves you concerned about the status of your parenting arrangements, feel free to make contact to discuss the situation and how to practically and legally resolve it as economically as is possible.