Parenting Plans or Parenting Orders – what is the difference?

The distinction between parenting plans and parenting orders is fundamental in Australian family law. The primary issues concern legal enforceability, flexibility, and the process for creation and modification.

Parenting Plans

1. Nature and Formalities:
A parenting plan is a written agreement, signed and dated by both parents (or relevant parties), setting out arrangements for the care, welfare, and development of a child. There is no prescribed form, and it does not require court approval.

2. Content
Parenting plans can address a wide range of issues, including:

– With whom the child lives and spends time
– Allocation of parental responsibility
– Communication arrangements
– Education, health, and religious matters
– Dispute resolution mechanisms

3. Flexibility:
Parenting plans are highly flexible and can be varied or revoked at any time by a further written agreement between the parties.

4. Legal Status:
Parenting plans are not legally enforceable. If a party breaches a parenting plan, the other party cannot seek enforcement through the courts. However, if a dispute later proceeds to court, the court must consider the terms of the most recent parenting plan when making parenting orders.

5. Suitability:
Parenting plans are most appropriate where parties have a cooperative relationship and require flexibility. They are not suitable where enforceability is a concern or where there is a risk of non-compliance.

Parenting Orders

1. Nature and Formalities:
Parenting orders are orders made by the Federal Circuit and Family Court of Australia (FCFCOA) regarding parenting arrangements. They may be made:

– By consent (consent orders), where parties agree and submit the proposed orders to the court for approval; or
– By judicial determination, following a contested hearing.

2. Content:
Parenting orders can cover the same matters as parenting plans, but are subject to the court’s assessment of the child’s best interests.

3. Legal Status:
Parenting orders are legally binding and enforceable. Breach of a parenting order may result in court sanctions, including make-up time, fines, or, in serious cases, imprisonment.

4. Modification:
Parenting orders can only be varied by a further court order or, in some circumstances, by a subsequent parenting plan (if the original order allows for this). Otherwise, a significant change in circumstances is generally required to justify variation.

5. Suitability:
Parenting orders are preferable where enforceability is required, or where there is a history of conflict or lack of trust between the parties.

A subsequent parenting plan can, in some circumstances, override or vary an existing parenting order, except where the order expressly prohibits variation by parenting plan. The court must consider the terms of the most recent parenting plan when making or varying parenting orders.

Parenting orders, while enforceable, are less flexible and require a formal process for variation. The court will always prioritise the best interests of the child, regardless of the parties’ agreement.

The choice between a parenting plan and a parenting order depends on the parties’ relationship, the need for enforceability, and the specific circumstances of the case. Parenting plans offer flexibility but lack legal force, while parenting orders provide certainty and enforceability but are less adaptable.

To help you decide which one is best for your case, speak with one of our Family Law Solicitors at Solari & Stock. Reach out to our experienced Sutherland Shire Solicitors today on 8525 2700 or click on the Book Now button below. Our experienced Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward, and Mia Doncevski.

Article by Shweta Kumar
Image created in Canva