This could be one of the most controversial things ever written but did you know that it is only 12 weeks until Christmas! Sorry about that.
Seriously though, with special occasions just around the corner (Christmas, holidays and the New Year) Parenting Plans are a way of preparing yourself, former partner and the children to make sure that the holiday plans include everyone in a way that is in the best interests of the children.
There are two options for settling arrangements for children – Parenting Plans and Parenting Orders.
The primary difference between a Parenting Order and a Parenting Plan is that an Order is easier to enforce in most cases. If someone beaches an Order, and the breach is significant enough, the other party is able to contravene them in the Court, to seek remedy for the breach. This, in most cases cannot happen for a strict agreement formalised only as a Parenting Plan.
While Orders tend to remain, I believe, the first choice for most solicitors, in most cases the Parenting Plan can be of definite assistance when an unexpected occasion raises its head, or arrangements are needing to be changed, or where there may be urgency in formalising arrangements. It is also worth noting that once a Minute of Consent is signed by both parties, it probably will meet the requirements of a Parenting Plan, and may effectively be one until Orders are made.
Whether you already have Orders in place, or no formal agreement in writing, a Parenting Plan is often the first step. They can be used to formalise the every day arrangements as well as those out of the ordinary. It is also worth noting that once a Minute of Consent is signed by both parties, it probably will meet the requirements of a Parenting Plan, and may effectively be one until Orders are made.
Often a parenting plan of short time frame will be drawn up if arrangements require a short term amendment. This is particularly so if there are Orders in place, and parents are wishing to agreement, so that the other parent can’t come back and say that they had acted in breach of an Order. These could be as simple as to change Christmas Day arrangements (say if one parent was wanting to go away with the children or was not available to spend the time that the Orders provide). It is common for parents on occasion to switch years that the children are in their care, and to be protected (so that the children are able to spend time with the other parent the following year), it can be important that such an agreement is formalised.
The question that is often asked is, what does a subsequent Parenting Plan mean to a prior finalised Order? The answer, as with everything in family law, is not particularly simple – it depends on the wording, time frame and what the plan is trying to formalise. If it was a simple change of Christmas day time (for example) and it referred to the remainder of the order continuing, then that is all the agreement relates to. If it seeks to discontinue the Order, and is signed and complies with all requirements, it may do just that.
Parenting Plans, while a good method of formalising change, but they can have a significant legal impact on your matter. It is for this reason that it is very important that they are not signed unless you have obtained legal advice on the force and effect of the Plan, and its impact on previous Orders.
Many years ago I had a very unhappy parent come to see me who had signed a Parenting Plan (while unrepresented and without legal advice) to simply get time recommencing after it had been, in his view, unceremoniously stopped by his former partner. This person then came to see me and found that his prior Consent Orders, which provided him with a lot of time, had been discharged by the Parenting Plan, and all of his time had been stopped. He wanted to contravene the former partner, but that was unable to happen as the Parenting Plan effectively provided an excuse for the ceasation of time. This is one of the reasons that it is so important that advice is provided prior to the signing of any legal document, or parenting plan, from a Family Law Lawyer Brisbane or someone practiced in this area of the law.
On the other side of the coin, there are plenty of Recovery Orders and the like that have been made by Courts on the basis of a Parenting Plan which had previously been made. The Family Law Act provides that the Court is required to take strong account of Parenting Plans, and they can be very helpful.
For an agreement that is signed to be classed as a Parenting Plan, there are requirements that need to be met. It must be in writing, signed by each person (preferably on each page) and dated. It is always a good idea for each party to have a copy, so that they can refer back to it. Usually, unless specifically referred to, a later Parenting Plan will discharge an earlier plan. These are all good reasons that parents seeking to formalise arrangements in this way need to obtain advice prior to signing.
Our Brisbane Divorce Lawyers team is available now for a fixed fee consultation to get your Parenting Plan or Parenting Order started ahead of the festive season.