Parenting coordinators: When parents can’t make joint decisions

Parenting coordination is a form of alternate dispute resolution.

A parenting coordinator (“PC”) is usually appointed in high conflict matters where parents are having difficulty co-parenting their children. The basis of a PCs appointment is either by –

1. a court order;
2. a parenting plan; or
3. a settlement agreement between the parties, which has been made an order of the court.

The court order or relevant clause of the parenting plan must stipulate the scope of the PC's authority. A PC cannot be appointed without a court order, parenting plan or settlement agreement already in place.

A PC uses mediation and other techniques, where necessary, to assist parents to come to an agreement when a dispute has arisen. But a PC does not play the same role as a mediator, who remains impartial at all times. Whereas a mediator does not make decisions on behalf of the parties, a PC is empowered to give directives in circumstances where the parties cannot agree, which directives are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise.

Court orders have regard to the standard of the best interests of the child, which includes –

1. care and contact;
2. guardianship;
3. the termination, extension, suspension or restriction of parental responsibilities; and
4. rights, which cannot be changed by a coordinator.

For example, it would be unlawful to confer on a coordinator the power to change the surname or primary residence of a child.

The coordinator’s powers to make decisions must be confined to “ancillary rulings”, necessary to give effect to the court order. These decisions cannot alter the substance of a court order or involve a permanent change to any of the rights and obligations defined in the court order.

This limitation on a PC’s power is to prevent the unlawful delegation of judicial authority (ie. The power of the court as upper guardian of minor children).

All decisions of the PC are subject to comprehensive judicial oversight meaning that the court can reconsider the PC’s decision. As such, the decisions of a PC are not in effect final, even if they operate immediately pending review. By permitting a PC’s rulings to operate, subject to either party’s right to apply to the court for a stay of the ruling pending a review, a balance is struck between the need for defined conflict resolution and the need for judicial scrutiny of the PC’s decisions.

In considering whether it is appropriate to appoint a PC, the court will consider:

1. Whether, the welfare of the child/children is at risk through exposure to chronic parental conflict (demonstrated by a longer-term inability or unwillingness to make parenting decisions together for instance by resorting to frequent, unnecessary litigation, by failing to comply with parenting agreements or court orders, by failing to reduce their child-related conflicts, and failing to protect their children from the impact of that conflict).
2. Mediation has been attempted and was unsuccessful or is inappropriate in the particular case. (The appointment of a coordinator without parental consent is a “last resort” reserved for the cases of ongoing and unending conflict.)
3. The PC proposed for the appointment is suitably qualified and experienced to fulfil the role of a coordinator. Before a court imposes a coordinator on parties without their consent, the court must be sure that the person appointed has the proper skillset, personal qualities and professional experience to do the job properly.
4. The fees charged by the proposed PC are fair and reasonable in the light of their qualifications and experience and that the parents can afford to pay for the services of the PC.

Written by Family Law Partner, Andrea Goldman with the input of Karen Botha, Attorney and Parenting Coordinator.