Unlike with agreements reached in relation to property matters, not all parenting agreements need to be formalised. Instead, parenting agreements exist on a sliding scale of sorts – from totally flexible to enforceable by the Court. Below we discuss the three options available to separated parents, and the benefits of each.
Verbal agreement
The most flexible option for parenting arrangements is to simply have nothing but what is verbally agreed (or documented in an email or text message simply for the benefit of being able to refer back to something). This option means that parents can converse between each other for ultimate flexibility and arrangements can change on a weekly basis. For some separated families this works well, but it does of course require a level of amicability and an ability to communicate that unfortunately isn’t achievable for some.
Parenting Plan
A Parenting Plan provides a good “middle ground” option for parents to have an agreement documented, but not to be bound by that agreement indefinitely. It is often the case that a Parenting Plan is used by parents when children are very young or separation is very recent, and no one is ready to “lock in” an agreement permanently.
Section 63(c)(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out that for a document to be considered a Parenting Plan, it must satisfy the following criteria:
- it is in writing; and
- it is or was made between the parents of a child; and
- it is signed by the parents of the child; and
- it is dated; and
- it deals with a matter or matters mentioned in section 63(c)(2) of the Act (being broadly, the care arrangements of a child or children).
The benefit of a Parenting Plan is that it documents exactly what both parents agreed to and it is a signed document, meaning that there is little room for one parent to later muddy the waters of what was discussed and agreed upon. A Parenting Plan can also be made on an interim basis, meaning that it can be written in the Plan that the agreement is only for a set period of time, e.g. for six months or until the subject child starts school.
While the terms of a Parenting Plan are not able to be enforced by the Court, section 65DAB of the Act sets out that when making an Order, the Court must have regard to the most recent Parenting Plan entered into by the parents, if doing so would be in the best interests of the child.
Parenting Orders
The opposite end of the spectrum and only option which is enforceable by the Court is to have Court Orders in place. Orders can be entered into by consent, meaning both parties agree to the terms of the Orders or they can be made by the Court where parties are unable to reach agreement. Parenting Orders are most appropriate where there is a severe breakdown in communication
