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A Parenting Plan is a written document, a mutual agreement between parties, which is signed and dated by the parties and sets out all kinds of matters relating to the future care and living arrangements for child/ren, and how parents will be make decisions about their care.

A Parenting Plan is not legally enforceable. However, it can be used as evidence in court about what care arrangement had been agree to by the parties previously, should the parties later engage in court proceedings.

Separation is usually emotional and difficult for everyone concerned. However, there are a few practical things that you need to think about at the time of separation, about to ensure that you manage this process properly and protect your interests and give yourself a chance to adjust to your new lifestyle.

The first things you need to think about usually will be:
a) Where are you, your partner and children going to live?
b) Are there any urgent financial issues that need attention?
c) What will be the arrangements for the children to spend time with both of you?
d) How will you and your children cope with the adjustment?

It’s important to plan the arrangements for your children in the first few weeks so they can be supported around the changes about to take place. Ideally you should try to keep changes to their routines to a minimum and not involve them in discussions between you and your partner that could make them feel confused about what will be happening about their home or school.

A parenting plan can give parties the flexibility they may need to change their child/ren’s care arrangements as the child/ren grows or their circumstances change.

Parenting plans can be varied at any time by the parties by making another Parenting Plan or another written agreement to change a part of parts of the existing parenting agreement.

Consent Orders are a written agreement that usually covers extensive provisions about the future are arrangement for a child or property settlement.

Consent Orders are legally binding on the parties and can be contravened.

Consent Orders can be obtained through making an application to the Court with a draft Order, usually without the need for the parties attend at Court in person – Consider our Factsheet – Applying for Consent Orders.

Consent Orders (or any Court Order) relating to parenting cannot be changed easily. If you wish to change parenting orders, you must either:

1. apply to the Court to have the Orders varied by fling another Application for Consent Orders and Minutes of Orders; or
2. Initiating court proceedings, provided that you have attempted family dispute resolution or mediation first (unless an exception such as the urgent recovery of a child applies); or
3. make a Parenting Plan to change the Orders provided this is done in writing and both parties enter that Parenting Plan free of any coercion or pressure by the other party to do so.

Deciding whether to have a Parenting Plan or a Consent Order will depend on each person’s own circumstances. You should think about how easily you and the other party communicate and the level of your present dispute.
If you are not sure that the other party will stick to their agreement, or if they have previously threatened to withhold the child from you, then a Consent Order would be the preferred option. If, however you are both able to communicate well and you think you are able to resolve future parenting issues between you without dispute, then a Parenting Plan might suit your better.

People sometimes interchange the two as they seem to do the same things and involve very similar processes. However, there are some clear differences.

Family Dispute Resolution (FDR) is a special type of mediation process, which parties are referred to help them reach their own agreement about their issues in dispute.

The FDR process uses a neutral and accredited Family Dispute Resolution Practitioner to assist the parties. It is less expensive than other forms of dispute resolution such as mediation.

Their main objective is to assist the parties to make a parenting plan setting out the agreed future parenting arrangements for their child/ren.

Whilst FDR is primarily used for parenting disputes, it can also be a very effective tool for property matters as well as in other areas of the law such as elder law.

Legal Aid Queensland, Relationships Australia and the Relationship Centre (Centrecare) are the most recognised providers of FDR.

Mediation (or private mediation) on the other hand is a process where the parties are assisted by an independent third party to help resolve their dispute called a mediator. The mediator does not have to be a qualified Family Dispute Resolution Practitioner, but they usually hold the necessary qualifications and are accredited mediators.

Whilst private mediations are more expensive, parties can attend mediation regarding parenting and/or property matters at the same time and the agreement reach during a mediation process can be formalised as a Court Order.

The Family Law Act requires parties to a parenting dispute to attempt Family Dispute Resolution before they can commence court proceedings regarding their child/ren’s future care arrangement. Family Dispute Resolution is compulsory expect for example where

• there are family and domestic violence factors, which make it difficult to reach an agreement for a child due to safety concerns;
• there are child abuse factors, which make it difficult to reach an agreement for a child due to safety concerns;
• there are urgent matter such as the recovery of a child where one parent refuses to return them to the other parent or where there is a risk of one parent relocating the child overseas;
• the court proceeding relates to a contravention or breach of Family Court Orders; or
• if a party is responding to an application which is already before the Court.

A de facto relationship is generally defined as a relationship in which two people of the same or opposite sex live together on a genuine domestic basis but are not legally married.

To be considered a de facto couple under the Family Law Act, you need to have lived with your partner on a genuine domestic basis for no less than two (2) years or there is at least one child of the relationship.

A divorce is the formal legal ending of a marriage.

You can apply for a divorce in Australia if either you or your married spouse:

1. regard Australia as your home and intend to live in Australia indefinitely; or
2. are an Australian citizen by birth, descent or by grant of Australian citizenship; or
3. ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You will need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months and 1 day and that there is no likelihood that you will reconcile.

The Australian legal system is a no-fault system which means that the parties do not have to prove who was at fault for the breakdown of the marriage.

You can commence property negotiations or initiate court proceedings in relation to property matters at any time after final separation. This applies to de facto couples also, provided they can show that a de facto relationship existed.

There are no time limitations for making an application to the Court for a property settlement and/or spousal maintenance if you are still legally married.

However, if you get a legal divorce, you must initiate court proceedings for property settlement and/or spousal maintenance within 12 months from the date the Divorce order came into effect. For example, if your Divorce Order is dated 1 January 2021, it comes into effect on 1 February 2021 and you have until 1 February 2022 to initiate court proceedings.

If you were in a de facto relationship, you must make an application to the Court for a property settlement and/or spousal maintenance within two (2) years from the date of final separation. For example, if final separation occurred on 1 January 2021, you have until 1 February 2023 to initiate court proceedings.

If you do not initiate court proceedings for property settlement and/or spousal maintenance within the limitation period, you will need to seek leave of the Court before you can proceed with your application. this can be costly and the Courts have a wide discretion about giving parties leave to proceed out of time.

A party’s property settlement entitlements are based on the principles set out in the Family Law Act 1975.

The Court follows a five-step process to determine an application for property settlement entitlements.

1. Is it just and equitable?
2. What is the property pool and its value?
3. Who made what contributions during the relationship?
4. Are there any other relevant factors to be considered – referred to section 75(2) factors?
5. Is it just and equitable?

The Court must decide whether there should be an adjustment to the parties’ interests in the property available to be divided.

Each party is under a positive obligation to make full and frank disclosure of their financial circumstances to each other. This means that each party must identify their assets, including money in any bank account, real property, any debts that are owed to the party, shares in any company, any chattels, such as jewellery or furniture. Parties also must make full disclosure of their superannuation interests. The Court needs to be told about all the property that they own or have an interest in. That can also include trust property.

It does not matter when each party acquired the asset (whether before, during or after the relationship). The same applies for any debts or liabilities.

The parties may agree on what something is worth. If they cannot then the item (whether it is the family home, or a car, or shares in a private company or a business) will need to be valued by an expert. Property is valued at the date it is being divided, not at the date of separation.

Contributions to the relationship include financial and non-financial contributions (direct and/or indirect), made by and on behalf of each of the parties to the acquisition, conservation or improvement of property, as well as homemaker and parenting contributions.

Contributions are assessed at the beginning of the cohabitation (initial contributions), during the relationship and after separation.

Homemaker and parent contributions may be given as much weight as the main income earner’s financial contributions.

In addition to the contributions made by a party towards the property available to be divided, the Court must also look at a variety other factors in deciding what adjustment (if any) should be made in favour of one party or the other. These factors are known as the ‘section 75(2) factors.’ The factors include:

• Whether either party has the care of a child of the relationship;
• The age and state of health of each party;
• The income, property and financial resources of each the parties;
• The physical and mental capacity of the parties for appropriate gainful employment;
• The earning capacities of each party and how the marriage has affected your earning capacities (i.e. increase or decrease);
• Commitments that are necessary for each party to support themselves or any other person;
• A standard of living that is reasonable in the circumstances;
• The amount of any child support being paid;
• Whether, in all the circumstances of the case, the proposed order is ‘just and equitable’; and
• Other relevant facts.

After weighing up those factors, a Court might make an adjustment to the contributions-based entitlement nominated at Step 3.

In the final stage, the Court looks at how best to divide the property based on the percentage range. This does not involve selling everything and dividing “the cash.” It is about dividing the property in a way to meet the parties’ needs and realities of life. This is stage where the Court checks to see that the orders proposed to be made are in fact, just and equitable.

If you have reached an agreement in relation to property matters, it is very important that you firstly seek legal advice about the nature of the agreement and secondly that you formalise the agreement in a proper form either as a Consent Order or as a Binding Financial Agreement.

If your agreement is not formalised in the proper form:

1. it is not enforceable, for example, a handwritten agreement is not sufficient to be enforced;
2. one or both parties may decide to changing the agreement or not follow through with it. For example, one party may decide not to leave the family home even though you have agreed that you will return to live in it and pay the mortgage;
3. it may expose one or both parties to further liabilities. For example, if you have agreed that one keeps the family car but they have not transferred the car loan, you are still liable for that debt.

Finalising your property settlement in a Consent Order or as a Binding Financial Agreement may also have tax and stamp duty advantages. For example, parties will be exempt from paying stamp duty to transfer the ownership of real property from one to the other. This may save the parties thousands of dollars.