Sometimes, people can consider the option of the child spending equal time, or substantial and significant time, with each of them where appropriate in their particular circumstances.
Parents may enter into a parenting plan under s 63C of the Family Law Act 1975 as to any of the following:
- the person or persons with whom a child is to live;
- the time a child is to spend with another person or other persons;
- the allocation of parental responsibility for a child;
- if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
- the communication a child is to have with another person or other persons;
- maintenance of a child;
- the process to be used for resolving disputes about the terms or operation of the plan;
- the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
- any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The “person” referred to above may be, or may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child): subsection (2A).
A parenting plan is not enforceable, whereas a parenting order is.
A parenting plan may only be varied or revoked by a later parenting plan: s 63D. Only parenting plans registered before the 2003 amendment (which repealed registration of parenting plans) may be varied by the court: s 63H. However, an unregistered parenting plan may effectively be varied by a party applying to the court for a parenting order under s 65C. In that event, the court must have regard to the terms of the most recent parenting plan “if doing so would be in the best interests of the child”: s 65DAB.
A parenting order is “subject to” (capable of being amended by) a later parenting plan: s 64D. If contravention of a parenting order is alleged at a time when a later parenting plan was in force, the court must have regard to the terms of the parenting plan and consider whether to make an order varying the order to include some or all of the provisions of the parenting plan (with or without modification). Also, the parenting plan’s terms may be a defence to the contravention application: s 70NBB.
Obligations of advisers
Note – An “adviser” includes a legal practitioner: s 63DA(5).
Section 63DA provides as follows:
If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must:
- inform them that they could consider entering into a parenting plan in relation to the child; and
- inform them about where they can get further assistance to develop a parenting plan and the content of the plan.
If an adviser gives advice to people in connection with the making by those people of a parenting plan in relation to a child, the adviser must:
- inform them that, if the child spending equal time with each of them is:
- reasonably practicable; and
- in the best interests of the child;
they could consider the option of an arrangement of that kind; and
- inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is:
- reasonably practicable; and
- in the best interests of the child;
they could consider the option of an arrangement of that kind; and
- inform them that decisions made in developing parenting plans should be made in the best interests of the child’s;
- inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2); and
- inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 64D) include a provision that the order is subject to a parenting plan they enter into; and
- inform them about the desirability of including in the plan:
- if they are to share parental responsibility for the child under the plan–provisions of the kind referred to in paragraph 63C(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and
- provisions of the kind referred to in paragraph 63C(2)(g) (which deals with the process for resolving disputes between the parties to the plan); and
- provisions of the kind referred to in paragraph 63C(2)(h) (which deals with the process for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan); and
- explain to them, in language they are likely to readily understand, the availability of programs to help people who experience difficulties in complying with a parenting plan; and
- inform them that section 65DAB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so.
For the purposes of paragraph (2)(b), a child will be taken to spend “substantial and significant time” with a parent only if:
- the time the child spends with the parent includes both:
- days that fall on weekends and holidays; and
- days that do not fall on weekends or holidays; and
- the time the child spends with the parent allows the parent to be involved in:
- the child’s daily routine; and
- occasions and events that are of particular significance to the child; and
- the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant.
