What is the next step?
Once the parties decide to proceed to try to agree on a parenting plan, they need to have the Parenting Plan prepared.
If s 33(2) applies, they would need to do it with the assistance of the relevant party (other parent). However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to s 33(4) of the Act: ‘A parenting plan must comply with the best interests of the child standard as set out in section 7’.
In order to ensure that your Parenting Plan is compliant with all the legalities and to make certain that important provisions are not left out, we strongly advise against the template based Parenting Plans you can download from the internet. For you own assurance we would suggest that you use a reputable organization, or legal expert familiar with family law or other suitable person to assist you with drafting your unique Parenting Plan.
Approval of a Parenting Plan in court
The court will usually approve a plan that has been mutually agreed upon by the parties with the parental rights and responsibilities. If there is a disagreement, the court will decide on a Parenting Plan after a hearing or trial. The court looks at various factors when coming to a decision, but the most critical issue is that the plan serves the best interests of the child.
Once the plan is finalised and signed by both parents, it becomes a legally binding agreement. When additionally filed with the Family Advocate’s Office, the agreement will be perused to determine conformity with the Children’s Act and amendments may be recommended and then the parties could apply for the plan to be made an order of the court.
A Parenting Plan has greater enforceability in law when it has been made an order of the court than when it has only been registered with the Family Advocate’s Office.
It is also important to note that the parties to the agreement are allowed by the Children’s Act to reassess the Parenting Plan from time to time to adapt to changing circumstances. It is advisable to reappraise the plan yearly at a minimum in a formal mediation session, as the needs of children change over time and the circumstances of parents may not allow for previous agreed upon conditions.
Enforcement of the Parenting Plan
A court approved Parenting Plan is binding to both parental parties once it has been authorised as part of the Divorce Order, Children’s Court Order or Family Advocate register.
If any stipulations are not adhered to in full, the guilty party may be found in contempt of court. A parent that is found in contempt of court, may face jail time, receive a fine or another type of punishment as determined by die court.
Parents that do not fulfil the responsibilities as set out in the legally binding document may have to appear in the Maintenance Court or Children’s Court. It is then in the discretion of the Court to determine a consequence to the action of the parent that is in breach of the Parenting Plan. This could include garnishing orders, fines or even jail time. If your Parenting Plan is part of your divorce proceedings, the court will be able to enforce it, and treat transgressions as a criminal offence.