Formalising Parenting Arrangements

Family Law: 06 October 2024

Author: Giselle Roman - Our People

Not all separations where there are children involved need to result in lengthy and contentious Court proceedings.

In fact, it is often the parents and caregivers for the children who are most familiar with the children’s needs, routines and therefore best placed to decide what arrangements will be in their best interests.

When parents can communicate openly and safely to reach an agreement about what the parenting arrangements should be, this collaborative approach is encouraged by the Court. Section 63B of the Family Law Act 1975 expressly states that the parents of a child are encouraged:

1.  to agree about matters concerning the child; and
2.  to take responsibility for their parenting arrangements and for resolving parental conflict; and
3.  to use the legal system as a last resort rather than a first resort; and
4.  to minimise the possibility of present and future conflict by using or reaching an agreement; and
5.  in reaching their agreement, to regard the best interests of the child as the paramount consideration.

Whilst agreements don’t always have to be in writing, many parents will find that having a clear set of rules or guidelines provides them with certainty and structure to prevent misunderstandings.

Having a mutual and clear understanding of the arrangements may also assist with alleviating stress and confusion and can be beneficial for parents when planning day-to-day activities, coordinating work schedules, booking annual leave and arranging holidays.

If parents reach an agreement about parenting arrangements, you can choose to formalise the agreement in writing either in a Parenting Plan or Consent Orders. Below is some information about each of these options.

Parenting Plans

A parenting agreement is a written agreement which is signed and dated by the parents of a child.

According to Section 63C(2) of the Family Law Act 1975 a parenting plan may deal with one or more of the following:

• the person or persons with whom a child is to live;
• the time a child is to spend with another person or other persons;
• the allocation of parental responsibility;
• the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
• the communication a child is to have with another person or other persons;
• maintenance of a child;
• the process to be used for resolving disputes about the terms or operation of the plan;
• the process to be used for changing the plan;
• any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

A parenting plan is considered a more informal agreement compared to Court Orders, as unlike Court Orders it does not necessitate court involvement or a formal application to the Court. A parenting plan is also not enforceable and can be changed by making a new parenting plan. This allows parents to modify and change the arrangements as needed and as the circumstances of their family change.

Some parents appreciate this flexibility and knowing that their intentions are still recorded in a written agreement. Overall, parenting plans can be an effective tool for fostering cooperation and ensuring that the needs of the children remain a priority.

Consent Orders

Alternatively, Parenting Orders can be made formally through the Court as Consent Orders.

Where both parties agree to the parenting arrangements they can submit an application with the agreed orders to the Court for approval. Once the Parenting Orders are approved by the Court, they are legally binding which means that they can be enforced through the Court if a party fails to comply with any of the orders.

Whilst many parents feel assured by having enforceable orders in place, it is important to be mindful that parenting orders can only be changed in certain circumstances and flexibility to change or adapt the Orders may be limited once they are in place.

If you want to change the parenting orders in the future and the other parent does not agree, you will have to file an application to the Court. The Court must then consider whether there has been a significant change in circumstances since the final parenting Orders were made and be satisfied that it is in the best interests of the child for the final parenting order to be reconsidered (s65DAAA).  

Binding parenting orders can help many families collaborate more effectively by establishing routines and setting clear expectations for childcare. In some cases, this process can improve communication between parents as they navigate their changing roles and responsibilities.

What if we can’t agree?

Sometimes legal proceedings can be unavoidable. Subject to some exceptions, if you cannot reach an agreement about parenting matters you will have to attend mediation and then apply to the Court for parenting orders.

Whatever your circumstance, it is recommended that you obtain legal advice. Please contact one of our experienced family lawyers at Aitken Partners on (03) 8600 6000 to discuss your options.