A parenting plan is not enforceable, so why have one?

It may have taken months of negotiation or a single parenting mediation session to get a parenting plan in place, only to have your ex stop adhering to it.

So, what are the benefits of doing one if it is not enforceable?

A parenting plan is recognised by the Family Law Act 1975 section 63C when signed, dated and made free of coercion, duress and threat. It is a plan which sets out your agreed parenting arrangements including;

• Parental Responsibility for decision making regarding the children.

• Who the children will live with

• The time the child spends with each parent.

• Communication between the parents and the parents and the children

• The maintenance of the child

• The process to resolve disputes for agreements made in the plan.

• How the plan will be changed to accommodate changes in circumstances for the child or parents

• Any aspect of the care, welfare or development of the children

• Cultural and religious commitments for the children

The absence of a parenting plan can lead to conflict and chaos where no agreement has been made regarding the care of the children. This not only increases anxiety and stress for the parents but also for the children who have no regular routine and structure in their shared care. Children can thrive between two loving homes when they know what the new routine is and adjust to that new routine. If there is no structured routine, they can become anxious and stressed as they do not feel safe with so much uncertainty in their lives.

Your parenting plan may have been adhered to for months or years but suddenly stopped due to conflict, work schedule changes, or a parent starts a new romantic relationship. If this occurs it is beneficial to initiate mediation to make an amended parenting plan that both parties agree with to enable new arrangements to be implemented. If the parenting plan is not amended to accommodate changes, then it is unlikely that the parents will continue adhering to an existing parenting plan. This may then lead to a parent initiating a court application to have orders made to have arrangements enforceable. It is far better to negotiate in mediation and reach agreement rather than going to court to battle it out at extreme cost, duration and stress.  The court will take into consideration your last signed parenting plan and the duration that it was working as they consider what is in the best interests of the children.

If you reach agreement in mediation and sign a parenting plan you can both decide if you want to have it formalised into consent orders by the court and have a Family Lawyer create the consent order application to submit to the court for processing. Some parents decide to make the consent order application themselves by using the consent order kit which can be obtained from the Federal Circuit and Family Court Of Australia here

So, what are the positives of having a parenting plan?  

• It provides an agreement regarding your children’s care that parents can adhere to

• It enables structure and routine for the children.

• The court can turn a signed parenting plan into consent orders which are enforceable.

• It sets out specific information to reduce conflict and confusion.

• It can be provided to the children’s school or medical team for reference.

  
  

So, what are the negatives of having a parenting plan?

• A parenting plan is not enforceable.

• If it has specific arrangements but doesn’t have the clause “unless otherwise agreed” at the end of each arrangement, it doesn’t provide the flexibility for changes that may need to occur.

• It can become obsolete if circumstances change for the parents or children.

• The other parent may not agree to re-do the parenting plan to increase overnight stays if it hasn’t included a phased parenting schedule that increases overnight stays over time.

• If the parenting plan is turned into consent orders, it is much harder to change orders as the court will only change consent orders if significant change of circumstances warrant it

The benefits of having a signed parenting plan although not enforceable, provides the children with their parents’ commitment to help them transition and adjust to the new family structure.

If you as parents are amicable and have agreed what parenting arrangements you would like in place, you can have your parenting plan created by “Our Parenting Plan” package or if you need help to negotiate your parenting arrangements you can do Parenting Mediation to reach agreement.

Author – Cheryl Duffy, Divorce Coach, Conflict Coach, Family Dispute Resolution Practitioner, NMAS Mediator & Parenting Coordinator

www.thedivorcecentre.com.au