For parents who have separated, there are a number of avenues that can be taken in deciding how their children should be cared for without having the need for court intervention. Parents who reach an amicable agreement can:
- make an informal agreement;
- make a parenting plan;
- make an application to the court for approval of consent orders.
What are the requirements for informal agreements?
Parties who wish to make their own arrangements for the care of children can do so informally after separation. For informal agreements, there are no requirements, such as the need for the agreement to be in writing.
The courts and the Family Law Act 1975 (Cth) (the Act) encourages parents to reach agreements without legal intervention. Under the provisions of s 63B of the Act, parents are encouraged to:
- agree to matters concerning the child;
- take responsibility for parenting arrangements and to resolve any conflicts;
- use the legal system as a last resort;
- minimise any present and future conflict by using, or reaching an agreement;
- reach an agreement where the best interests of the child is the paramount consideration.
When parents agree to a parenting plan, for it to be valid, the plan must conform to the requirements set out in s 63C(1), which are:
- the plan is in writing;
- the plan is signed and dated by the parties;
- the plan is to deal with matters such as who the child is to live with, spends time with, communicates with, along with maintenance and other issues (s 63C(2)).
It should be noted that a parenting plan will only be valid if it was made free from threat, duress, or coercion (s 631A).
Furthermore, parenting plans should be signed only after careful consideration by the parties, and after seeking advice from a legal practitioner.
Best interests of the child
The overarching requirement for a valid parenting plan is the best interests of the child: What does that exactly mean? Section 60CC(2) of the Act sets out what the court considers as the best interests of the child. The primary considerations in relation to the best interests of the child are:
the benefit to the child of having a meaningful relationship with both parents;
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC also sets out a number of additional considerations in relation to the best interests of the child, such as any views held by the child, and the nature of the child’s relationship with each parent, and other extended family members.
What effect does a parenting plan have?
Although parenting plans may not be enforceable, they can however override an existing court order made after 1 July 2006. Furthermore, any parenting plans will be considered if a matter goes to court.
Finally, parenting plans are recognised by governmental agencies such as Centrelink and the Child Support Agency.