Parenting Plans or Parenting Orders

In Australian family law, parenting plans and parenting orders are both used to set out arrangements for the care of children after parents separate, but they differ in terms of formality, enforceability, and the process through which they are established. Here’s an explanation of the key differences:

1. Parenting Plans

A parenting plan is an informal, written agreement between parents about the care and upbringing of their children which is signed and dated by both parents. It is a document that outlines various aspects of a child’s care and living arrangements, but it is not legally binding. A parenting plan may be used as evidence of the parents’ intentions at the time the agreement was made if there is a future dispute and/or court proceedings.

Common Contents in Parenting Plans:

• Where the child will live (e.g., primary residence and time spent with each parent)
• How decisions about the child will be made (e.g., educational, medical, religious)
• Communication arrangements (e.g., phone calls, video chats when the child is with the other parent)
• Holiday arrangements and special occasions (e.g., birthdays, Christmas)
• The process to be used, such as mediation, if there are any future disputes about what is contained in the parenting plan or if a parent wants to change the plan later.

Key Features of Parenting Plans:

• Informal Agreement: Parenting plans are typically reached through discussion or negotiation between the parents. They are voluntary and do not require court involvement to create.
• No Court Approval: Unlike parenting orders, a parenting plan does not need to be approved by the court. It is simply an agreement that the parents make between themselves.
• Not Legally Binding: While parenting plans are made in writing, they are not enforceable in court unless they are later converted into a formal parenting order. If one parent breaches the plan, the other parent cannot ask the court to enforce it, although the court may consider the plan as evidence in future proceedings if the situation escalates.
• Flexibility: Parenting plans are often used when parents want a less formal arrangement, especially when they have an amicable relationship and can communicate well. It allows for flexibility and can be easily modified or adjusted by mutual agreement.

When are Parenting Plans Used?

• When parents have a cooperative relationship and can make decisions together and communicate effectively.
• When parents are seeking an informal resolution without the need for court involvement.
• As an initial step before pursuing formal orders, or as a temporary solution.
• When parents want to replace existing parenting court orders by agreement with a more flexible arrangement. 

If a parenting plan does not work out or if parents later wish to formalise their agreement, they can apply to the court for parenting orders based on the same or revised arrangements .

2. Parenting Orders

A parenting order is a formal, legally binding court order that sets out the arrangements for a child’s care after parents separate. These orders are made by the Federal Circuit and Family Court of Australia, and they have the same force as any other court judgment. Parenting orders can be made with the consent of both parents or by a judge following a hearing.

Common Contents of Parenting Orders:

• Living Arrangements: Where the child will live (with whom, and the time spent with each parent).
• Parental Responsibility: Who has the authority to make decisions about major long-term decisions for a child such as education, health care, and general welfare.
• Time with Each Parent: Specific arrangements for the time the child spends with each parent, including how holidays and special occasions will be handled.
• Communication: Rules around how and when the child can communicate with each parent when they are not together (e.g., phone calls or video chats).

Key Features of Parenting Orders:

• Court-Ordered: Parenting orders can be made in two main ways:

(1) By consent of both parents by filing an Application for Consent Orders, a copy of the proposed Consent Orders, and a Notice of child abuse, family violence or risk.

A Registrar of the Court will then review those documents and make them if they are satisfied that the agreement is in the best interests of the child/ren or advise if they have further questions. Once consent orders are made by the Court they are legally enforceable, which means that parents must comply with the terms outlined in the order;

(2) By order of a judicial officer after a Court hearing after one or both parents apply to the court. Orders can be made on an interim basis (until there is a final hearing or further agreement) or on a final basis.

• Legally Binding: Once a parenting order is issued by the court, it is legally binding on both parents. If one parent does not comply with the order, the other parent can apply to the court for enforcement.

• Formal Process: To obtain a parenting order, parents typically need to go through a formal process that includes:
  • Mediation: In most cases, if parents cannot agree on matters involving their children, they are required to attend mediation before making an application to the court. Exceptions to this requirement may include: if the application is made with the consent of both parents, if there are allegations of family violence or child abuse, if the matter involves a serious disregard and breach of family law orders made within the last twelve months, if the application is made in circumstances of urgency, or if one or more parties are unable to participate effectively in mediation.
  • Application: One or both parents file an application with the court.
  • Court Hearing: If the parents cannot reach an agreement, the court will decide on the terms of the parenting order based on the child’s best interests.
• Enforceable: If one parent does not comply with a parenting order, the other parent can request the court to enforce the terms of the order, or that the non-complying parent be penalised for the non-compliance. Possible penalties for failing to comply with a parenting order without a reasonable excuse may include fines, make-up time, attendance at a post-separation parenting program, the variation or suspension of parenting orders, compulsory mediation, or in extreme cases, the parent who breaches the order may have access to the child limited or supervised, have to enter into a bond or face a sentence of imprisonment.
• Modification: Parenting orders can be varied (changed) by the court if there is a significant change in circumstances or if both parents agree to the changes.

When are Parenting Orders Used?

• When parents are unable to reach an agreement through negotiation or mediation.
• When one parent wants to ensure that the terms of the arrangement are legally enforceable and binding.
• When a parent seeks to have the court’s authority in resolving disputes about care arrangements for a child, and decision-making for a child.