More often than not after separation, parents are able to reach an agreement with respect to the long-term decision making and care of the children. There are a couple of different options to consider when deciding how to document that agreement, and it’s important to know the practical realities and legal consequences of each one.
If parents have reached an agreement by negotiating between themselves and/or at mediation, it’s not uncommon for the agreement to be written up in an informal way. This is what we call a “parenting plan”. A parenting plan might include details as to who shall make the major-long term decisions in relation to the children (this is referred to as “parental responsibility”. Click here
for our article discussing what this means , who the children will primarily live with, and how much time they spend with the other parent. It might also include details as to how and when the children can communicate with a parent when they are in the other parent’s care (ie. Facetime, Messenger, Skype), and how much time the children spend with each parent during school holiday time. A document formalising a parenting agreement need only be signed and dated for it to be considered a “parenting plan”.
A parenting plan has its advantages, including:
1. It is informal and can be drafted without the help of a lawyer (and is therefore often a cost-effective option);
2. It is flexible – the parents can agree to change the arrangements whenever they deem necessary/appropriate;
3. It shows the intentions of the parents at the time the document was signed, which, if necessary, may be able to be used in Court at a later date.
Despite the above, there is one major drawback to a parenting plan that parents should be aware of, that being it is legally unenforceable. For example, if the parenting plan provides for the children to spend every second weekend with one parent, and the other parent does not make the children available on those weekends, there is no remedy or recourse for the first parent. This is where it may be more appropriate for the parties to enter into Consent Orders, which are then filed with, and sealed by the Court.
While parenting plans provide an informal, cost-effective and flexible way to document arrangements for care of the children, ultimately they are unenforceable and can cause frustration if the arrangement is not followed. Conversely, Consent Orders are Court-ordered parenting arrangements agreed upon by the parents (and usually drafted by a solicitor), which can address the same issues captured in a parenting plan, and can be enforced if not complied with. If a parent is found to be in contravention of Orders (without a reasonable excuse), there can be penalties issued against that parent, ranging from, for example, an order for the children to have make-up time with the other parent, up to a prison sentence being imposed against the non-compliant parent.
Deciding whether parents should enter into a parenting plan or Consent Orders should always be assessed on a case-by-case basis. If there are concerns with respect to one or both parents not complying with a parenting plan, then it may be more appropriate for the agreement to be documented in Consent Orders.