Many parents are able to come to an agreement about how they will share care of their children. The parties can then finalise this agreement by way of Court Orders or by Parenting Plan.
Court Orders can be applied for jointly with the consent of the parents, to give certainty and enforceability to an agreement. The parties will have to fill out particular forms for the Court and meet particular criteria. For more information on Consent Orders, see our Application for Consent Orders tab.
Alternatively, some parents will wish to finalise their matter by way of a Parenting Plan. A Parenting Plan is not enforceable in the Court or by the Police and does not get filed in the Family Court. However, it can be done outside of Court by the parties without the need for involvement by the Court (or lawyers) and can be fairly quick to draft. Parenting Plans are most useful in circumstances where the parties are amicable and there is trust between them.
The Family Court encourages parties to examine whether they can finalise their children’s matters by Parenting Plan. A Parenting Plan allows for a great deal of flexibility and puts the parents in charge of the child care process. Whilst Parenting Plans are not dealt with in the Court, they are still subject to the law. A Parenting Plan overrides any prior inconsistent court order.
Drafting a Parenting Plan
There are particular criteria that Parenting Plans need to meet in order to satisfy the law and be classified as a “Parenting Plan”.
- The Parenting Plan must be documented in writing;
- It must be entered into freely and willingly by both parties, and without duress or coercion;
- It must be signed and dated by both parties; and
- It must deal with the care, welfare and development of a child.
The Parenting Plan may also include how the parties wish to divide their property, however that will not be a legally recognised part of the agreement.
A Parenting Plan typically includes some or all of the following:
- Who has Parental Responsibility for major long term issues;
- Who the child lives with;
- How the child will spend time with both parents;
- How the child will see other interested people (including siblings, Grandparents, step-parents, extended family members and other important people in the child’s life);
- How the child will communicate with the parent they are not presently living with (eg – a telephone call schedule);
- Where the child spends special days (such as birthdays, Christmas, Easter and other important dates);
- How the parties will facilitate a child’s extra-curricular activities;
- The parenting style that the parties would like to adopt;
- Rules for discipline;
- Rules for health care, religion, education and emotional well-being of the child;
- How future changes to the Parenting Plan are to be made;
- Any other detail of a child’s care; and
- To an extent, child maintenance (for more information, speak with the Department of Human Services, Child Support or your legal adviser).
It is important to note in drafting a Parenting Plan that it must still be done so with reference to the law and in consideration of the child’s best interests. For more information on how the law applies to children’s matters, see our tabs above and consider seeking legal advice.
Changing a Parenting Plan
If you already have a Parenting Plan and are wishing to change it, you must consider these potential changes with your former partner in light of the child’s best interests.
Any changes must be discussed with the other party. You cannot make a change to a Parenting Plan unless both parties agree to those changes.
If you are having difficulty coming to an agreement, you may wish to consider discussing potential changes in Family Dispute Resolution mediation.
Ultimately, if an agreement is not reached and you still wish for those changes to be made, and you believe them to be in the best interests of the child, you may have to proceed with your matter in the Family Court of Western Australia. Unless there are circumstances of urgency or family violence, you will not be able to do so without first having attended Family Dispute Resolution mediation.
For more information on proceeding with any matter to Court, you can go to our Commencing an Application tab above and should consider seeking legal advice.
If a Party is not following a Parenting Plan
Once a Parenting Plan is entered into, it should be followed genuinely and to the parties’ best abilities. If a party is not following a Parenting Plan, then this may be a sign that the parties have to reconsider the terms of their agreement.
Parenting Plans are not enforceable by a Court. Whilst they are evidence of an agreement, their terms cannot be enforced on a party by the Court or the police.
If one parent is not following a Parenting Plan, there are a number of options the other parent can take in finding a resolution. These range from inviting the party to Family Dispute Resolution Counselling to Family Court Proceedings. If you are unsure of how to proceed in your matter, you may wish to consider seeking legal advice.
A number of relationship and family law organisations have developed brochures and resources for parents considering Parenting Plans. Some of these resources are below:
- The Australian Government’s Family Relationships organisation has drafted a Parenting Plan guide, with templates, which you can access here.
- Relationships Australia has drafted a comprehensive child care and financial agreement brochure, with templates, which parents can download here.
- The Women’s Law Association of Western Australia has drafted a guide on Parenting Plans and Consent Orders, with templates, which you can access here.
- The Department of Human Services has some information on considering Parenting Plans, which you can access here.
You can also instruct a private solicitor to draft a Parenting Plan for you. Additionally, in the course of Family Dispute Resolution, parties can be lead through the drafting process by their Family Dispute Resolution Practitioner.