Parenting Plan Dispute Mediations

If you are a parent requiring a parenting plan

You will be aware that separating can be painful for all involved, and especially for your children. Children need love, support, and access to both parents as well as significant people in their lives; such as, grandparents. To create certainty the family law system is designed to encourage the parents who are undergoing separation or divorce to endeavour to work out the arrangements for children between the parties rather than in court. A Parenting Plan is a means to ensure that arrangements for children are prioritised.

Best interests of children?

When making a Parenting Plan it stands to reason that society should consider what is most important for your children. After all, they can be very vulnerable and can be collateral damage of separation.

Parenting plans

Parenting plans are voluntary. They are an agreement that the parents make to cover how the day to day responsibilities of parenting are handled. The parenting plan considers each parents circumstances and the practicalities of daily care and long-term issues that parents may need to make decisions about. Parenting plans can be changed if the parents agree.

Who makes the parenting plan?

A legal parenting plan must adhere to the Family Law Act 1975. This means that the plan is made by the parents and both parents execute the document. It is important to remember that grandparents or step-parents can also be included in the parenting plan.

The Family Law Act 1975

Parenting plans can be comprised of any form of document but to be legal the Family Law Act states that a parenting plan must be in writing, signed, and dated by both parents. Furthermore, a parenting plan is not legal if a party made it because of threats, duress, or coercion. Parenting plans are different to parenting orders. Parenting plans are not legally enforceable. Parenting orders are made by a court. Nevertheless, parents who make a parenting plan can go to the court and ask the court to convert the parenting plan into parenting orders which are legally binding and have the same effect as any other parenting court order.

Can the parents still end up in court?

If the parents end up in court, then the court must consider the most recent parenting plan before they make a parenting order but only if it is in the best interests of the child to do so. The court will also take into consideration how much both parents complied with their respective obligations about the child. This may include what was recorded in parenting plans. Parents can change arrangements so that it is practical for parents to agree changes rather than going back to court.

What is included in a parenting plan?

Parenting plans should be simple and practical. They should also be unambiguous. Your parenting plan can cover topics like care, welfare, education, hobbies, where the child resides, how much time the child spends with each parent, how the children will communicate with each parent, and development of a child. There are special rules that apply about child support in parenting plans (See Parenting plans, child support and Centrelink below). You can also include spousal maintenance or property) but those provisions will not be legally enforceable. You can ask the court to make consdent orders to make things legally binding.

Child Support and Centrelink

Where there are possible changes to care arrangements it may affect child support, income support and family assistance payments. If you do have a parenting plan and receive Child Support (CS) then Child Support will likely have a a copy of it. So, if a parenting plan specifies amounts for child support payments, then Child Support will not be able to enforce it unless there is also a legal child support agreement that both parties accept. There are some conditions that must be met before Child Support can accept a child support agreement. Parenting agreements and how much you receive from Child Support can also impact Family Tax Benefits.

• For more information call Child Support 131 272 or go to www.humanservices.gov.au/customer/dhs/child-support.
• For Centrelink (Families and Parents Line) call 136 150 or visit www.humanservices.gov.au/customer/themes/families

Best interests of the child

All parenting plans must consider what is best for the child. All children have the right to have a relationship with the child’s parents but also all children have the right to be protected. The safety of the child is of paramount importance. The children’s view where it is expressed should also be considered.

Equal time and equal responsibility

Unless there is abuse or violence, then legislation and the courts presume it is in the best interest of a child for the parents to have equal shared parental responsibility. This does not mean that each parent will automatically be presumed to be able to spend equal time with parents. Equally shared responsibility in other words means parents are equal in making decisions about long-term issues that affect their children like school or health issues. If the child spending equal time with each of you is reasonably practicable, and in the best interests of the child then this is the type of thing that a parenting plan may set out. However, distances, communication, and ability to solve issues must all be accounted for in the creation of parenting plans.

Time spent with parents

If equal time is not suitable then a parenting plan that provides for the parents spend substantial or significant time may be in the best interests of the child. This might mean a child spends time with both parents on weekdays or weekends, and be able to share time in birthdays or holidays.

The Section 60I Certificate

Where parties apply for parenting orders; generally, you need to file a section 60I certificate with your court application. To obtain a section 60I certificate, you must have a discussion with a mediator about whether mediation is suitable in the circumstances.

Our mediator can issue a section 60I certificate if mediation is not appropriate in your circumstances or if you or your former partner do not attend the mediation or if the parties do not make a genuine effort during the mediation or both parties made a genuine effort during mediation but there was no agreement reached.

Exceptions to attending mediation Parenting You must go to mediation before you apply for parenting orders, except if:

• you are applying for consent orders
• your case is urgent, such as where you apply for a Recovery Order
• there is any allegations of family violence or child abuse
• you or your ex-partner are not able to participate effectively in the mediation, such as where you are located too far from the mediation venue.
• you are applying in cases where for example your former partner may have breached an order made in the last 12 months, or where there are grounds to believe your former partner may have shown serious disregard for obligations under an order the former spouse or partner may have breached.

Property  If your family dispute relates to property then you must go to mediation before you can apply for any financial or property orders, except in circumstances where:

• your matter is urgent
• there are allegations of family violence, or where there is any risk of family violence
• you would be unduly prejudiced if you were required to comply with the pre-action procedure
• you and your ex-partner have been involved in property proceedings in the same 12 months immediately prior to the commencement of proceedings
• if the proceeding is a child support application or appeal, or
• if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.

Failure to mediate

You can find out more at the Federal Circuit and Family Court of Australia website by clicking (Here) You must make a genuine attempt to resolve any disputes with your former partner in relation to any property or parenting matters by attending or attempting mediation, before the court will permit you to apply for a court order. If you do not participate in mediation or make genuine efforts to attempt mediation then the mediator may issue you with what is called a Family Law Act Section 60I certificate which the mediator certifies that you failed to attend mediation or that you did not make a genuine effort at the mediation. If either party applies for parenting orders, then it is at the Court’s discretion whether they choose to accept the application. If the court does not accept the application, then the parties must go back to mediation. The Court may also make a costs order against you.

• Before applying for Parenting Orders, you must attempt mediation
• Mediator issues Section 60I certificate if mediation not appropriate