Separation and Parenting Plans
0For the parents of any separated family, reaching and sticking to agreements as to how to continue to raise their children is often one, if not the most important goal.
If the parents can’t agree, the dispute ultimately is resolved by a Family Court Judge who will make Orders effectively telling the parents how to parent their children. Thankfully in a large majority of cases, the parents are able to agree on mutually acceptable arrangements and so for these parents, the question begs, do we need to have any formal documents signed up to record what we have agreed to voluntarily do? In short there are two choices, a Consent Court Order or a Parenting Plan (P-plan).
Generally speaking, P-plans are recommended for low conflict families and are also attractive because they are a much cheaper and a more flexible option compared to Consent Orders.
For an Agreement to be a “Parenting Plan” it must be in writing, dated and signed by each of the parents. There are no other requirements (such as a special form, witnessing of signatures etc) except that the Agreement must be made free of any threat, duress or coercion.
The P-Plan can cover a wide spread of issues between the parents including:
– the “who” and “how” of decision making for the long term and day to day welfare of the child;
– where the child will live and/or spend time and communicate with the other parent;
– arrangements for special days such as birthdays, Christmas, Mother’s/Father’s day and the like;
– choice of schooling, participation in sport, cultural and other extracurricular activities;
– controls regarding overseas travel or moving away;
– religious upbringing; and
– arrangements for the financial support of the child.*
*Additional rules apply if child support arrangements are to be included.
The Agreement can, if needed, extend out to include step-parents, grandparents, adult siblings, and other persons participating in the child’s life.
If child support is being paid under the regular Child Support system, the Agency will use the living arrangements recorded in the P-plan to calculate the “night-count” necessary to work out how much child support is to be paid/received between the parents.
Importantly, a P-plan cannot be enforced in the way that a Court Order can. If one parent breaches the arrangements, the innocent party can apply to the Family Court to have the terms of the P-plan upgraded to formal (and fully enforceable) Orders however, the Court is not bound to do so and can instead make alternate Orders if it considers this to be more appropriate for the child’s welfare.
A P-plan can be varied between the parents at any time by simply signing up a new P-plan Agreement. If the parents can’t agree, then either parent (or both) can apply to the Family Court for formal Orders to set the new (or preserve the old) arrangements. On the hearing of that application the Court is bound to have regard to the terms of the previous P-plan but again is not bound to follow its terms and is free to make alternate Orders where suitable.
If the current child care arrangements are governed by a Court Order* the parents are free to agree on (and record) the new alternate arrangements by way of a P-plan however, the new P-plan will still downgrade to a non-enforceable arrangement. Consequently, if enforceability remains desirable the parents will have to re-apply to the Court for new/replacement Orders.
*provided the Order is made after 1 July 2006
Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 25 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice, phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
