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Shared Parenting Plan Agreement Considerations

Considerations, principles and outlines for planning and drafting Parenting Plans (and Orders).

The following information is from the Family Law Section of the Law Council of Australia - both lawyer trade unions.

It is titled "Parenting Orders", however the considerations, principles and outlines are also applicable in planning and drafting Parenting Plans.

Parenting Orders
Your Responsibility as a Parent

Both parents have full responsibility for their children until they reach 18, unless a Court orders otherwise. This is not changed in any way as a result of a change in your relationship with your partner, for example, if you decide to separate or remarry. You both have responsibility for your children's welfare, both on a long-term and day-to-day basis. This includes deciding where the child will live and go to school and when the child will have contact with the person they are not normally living with.
The best outcome is for both parents to genuinely agree and to work co-operatively in developing and living a parenting plan agreement.
What if You Agree?

It's going to cost you less, in time, money and emotional distress, and be easier on your children, if you both agree on the arrangements you wish to make for your children after you separate.

There are a number of ways of formalising these agreements, although you are not obliged to do so.

1. You can both ask the Family Court or the Federal Magistrates Service to make parenting orders by consent - you won't actually have to go to court to do this. This is currently the usual way of making the arrangement binding.

2. You can enter into a Parenting Plan, which deals with all significant issues relating to the child's care, welfare and development, and then ask to have the Family Court or the Federal Magistrates Service to register it.
Not all agreement is genuine and uncoerced.  Fathers need to be careful not to get pushed (rolled over) into "consenting" to a 'agreement' (parenting plan) at a Family Relationship Centre (FRC) or with a 'mediator'.

Likewise, fathers need to aware of and cautious of being pressured into an 'agreement' (orders) by their lawyers, particularly in the foyer or counselling rooms at court on the day.  There is a very strong pressure from the courts and lawyers, your own lawyers, to give up much (you'll be told this is the best outcome, that you could lose everything, that you are being unreasonable, etc) and to 'consent'.

Many fathers regret doing so after several months when they realise the full implications of what they 'agreed' to and now cannot change (Rice vs Asplund).  If you are not happy with a proposal take it back into the judge or magistrate, but be both a) prepared (have a thought out and reasonable plan), and b) reasonable.

Here are the areas to be considered and covered by an agreement (parenting plan or orders):
What if You Both Disagree?

If you cannot agree on these matters, you can apply to the Family Court or the Federal Magistrates Service to determine who is responsible for what. These orders are called parenting orders.

They are of four types:

1. Residence Orders - with whom the child lives

2. Contact Orders - with whom the child will have contact

3. Specific Issues Orders - an order about any other aspect of parental responsibility.

4. Child Maintenance Orders - these are infrequent because most children are now covered by the Child Support Scheme.

A parent, a child or anyone else concerned with the welfare of the child can apply to the Family Court or the Federal Magistrates Service for a parenting order. For example, this applies to grandparents or step parents.
The first two of these scenarios at least given a nod in the direction of the dreaded "best interests of the child" because they allow the children to maintain both parents in their lives.  The third is not really about parenting but about ownership and control.  Sadly, in the main, the courts and lawyers are associated with this last scenario.
Residence and Contact Orders
While there is no inherent limit to the variety of different orders you can apply for, the three most common applications are:

1. A residence order that the child live with you for some of the time and the other parent for the rest - you will need to specify the periods concerned

2. A residence and contact order that the child live with you and that the child have contact with the other parent for specified periods of time

3. A residence and specific issues order that the child live with you and that you have the sole responsibility for the child's care, welfare and development
If you don't want to be cut out of your child's life it is important to consider and incorporate a range of "specific issues".  If you don't, like many fathers before you, you may find yourself with no right to involvement or a say in matters that are typically associated with parenting.
Specific Issues Order

You may wish to apply to the Family Court or the Federal Magistrates Service for orders regarding the child's schooling, health care, medical treatment and so on. These orders are known as specific issues orders.
While the following is self-promotion, by the abovementioned lawyer unions, for lawyers, the point is well made that the issues and processes (and paperwork) need to be well informed and thought out because they will impact your child(ren)'s future.
Ask Your Lawyer

The issues involved in the care, welfare and development of your children can be complex, and any decisions you make now can have significant implications for the future. You should talk to your lawyer to ensure that any agreement reached will be binding, even if your former partner has a change of attitude in the future.
Additionally, if you do seek help from a lawyer, try and maintain control.  Don't leave everything to (or trust) a lawyer.

Don't give the lawyer original documents (they may be difficult to get back if you want to change lawyers or don't want to pay for unnecessary services).

Try to maintain the initiative and to be proactive, particularly if taking a matter to court.

Do not use a lawyer as a counsellor - they're expensive and lousy counsellors.  Do stick to the issues.

Don't get trapped in a vicious circle of lawyers trading letters.  Do work on an outline (plan) of what you want and use the lawyer to advise on specifics, format and process.  Do try to get you matter resolved either via arbitration/mediation (but don't waste much time on this if it doesn't look promising) or into court ASAP.

Many lawyers will try and prolong pre-court activities, because it is in and from these that they derive their income - more so than from in family courts, because once the goose is cooked it stops laying golden eggs.
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