Essential requirements of informal post-separation parenting plans
It’s not unusual for parties who have separated to make their own private parenting arrangements in relation to their child. Private parenting arrangements are an attractive option because they are cost effective and relatively easy to produce. They may also be less emotionally intensive than dealing with the formal legal system.
Parties who wish to undertake post-separation arrangements privately can choose to do so in writing by way of parenting plan. However, one of the important things to keep in mind is that private arrangements are generally not legally enforceable.
Technical requirements of parenting plans
Section 63C(2) of the Family Law Act 1975 (Cth) (the Act) sets out the following technical requirements that must be met:
- the plan must be in writing;
- the plan must be signed by all parties;
- the plan must be dated;
- the plan must deal with one or more of the following: the person or persons with whom the child shall live with; the time the child is to spend with the other person or persons; the allocation of parental responsibility for the child; if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made when exercising the responsibility; the communication the child is to have with another person or other persons; maintenance of the child; the process used for resolving disputes about the terms or operation of the plan; the process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties of the plan; any aspect of the care, welfare, development of the child or any other aspect of parental responsibility; and
- the plan must not be made under any threat, duress or coercion.
For parties who have separated, a formal parenting plan is not compulsory.
Do parenting plans have to be registered?
Parenting plans can no longer be registered, and any reference made to the registration of parenting plans are in relation to plans made before the commencement of the Family Law Amendment Act 2003.
Although there is no longer a formal obligation to register parenting plans, it should be highlighted that any plans will still have an effect as long as it meets the s 63C technical requirements outlined in the Act.
Are parenting plans legally enforceable?
Due to the fact that parenting plans aren’t generally legally enforceable, any party who is in breach of the plan will not face any legal sanctions. Although, with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the 2006 Amendment), any previous court order addressing the same matters may be unenforceable.
Anyone who wishes to make the agreement legally enforceable can apply to the court for a consent order to be made after an agreement has been reached.
Can parenting plans be varied, modified or terminated?
Under exceptional circumstances such as family violence, abuse, or the use of coercion or duress from one party to another in seeking a parenting plan, may allow the court to make a special order that permits other courts to vary an order.
Alternatively, parenting plans can be modified or terminated at any given time via written agreement between the parties.
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