In Australian family law, there are three main types of arrangements for parenting after separation: parenting plans, parenting agreements, and parenting orders. Each serves a distinct purpose and has different legal implications.

Parenting Plans

A parenting plan is a written agreement between parents that outlines the arrangements for their children's care

According to Section 63C of the Family Law Act 1975, a parenting plan must be:

• In writing
• Made between the parents of a child
• Signed by both parents
• Dated

Parenting plans can cover various aspects of a child's care, including:

• Living arrangements
• Time spent with each parent
• Allocation of parental responsibility
• Communication between the child and parents
• Maintenance of the child
• Dispute resolution processes

It's important to note that parenting plans are not legally enforceable. However, they can be considered by a court if future legal proceedings arise. Parents can create a parenting plan without going to court, but it's advisable to seek legal advice before finalizing one.

 

Parenting Agreements

A parenting agreement is a broader term that encompasses various types of arrangements between parents, including parenting plans. While not explicitly defined in the Family Law Act, a parenting agreement generally refers to any written document outlining parenting arrangements. Parenting agreements can be:

• Informal (like parenting plans)
• Formalized through consent orders

The key difference between a parenting agreement and a parenting plan lies in its potential for legal enforceability. If parents choose to have their agreement formalized as consent orders, it becomes legally binding.

Parenting Orders

Parenting orders are legally binding decisions made by a court about children's care arrangements. They can be obtained in two ways:

1. By consent: When parents agree on arrangements and apply for consent orders
2. Through court proceedings: When parents cannot agree, and a judge makes a decision after a hearing

Parenting orders can cover similar aspects as parenting plans, but they have the force of law behind them. Contravening (breaching) a parenting order can have serious consequences, including penalties and, in extreme cases, imprisonment.

Key Differences

1. Legal Enforceability:

   • Parenting Plans: Not legally enforceable

   • Parenting Agreements: Can be legally enforceable if formalized as consent orders

   • Parenting Orders: Legally binding and enforceable

2. Creation Process:

   • Parenting Plans: Created by parents without court involvement

   • Parenting Agreements: Can be created by parents or through mediation

   • Parenting Orders: Issued by a court, either by consent or after a hearing

3. Flexibility:

   • Parenting Plans: Most flexible, can be easily changed by mutual agreement

   • Parenting Agreements: Flexibility depends on whether they're formalized

   • Parenting Orders: Least flexible, can only be changed through court proceedings

4. Consideration in Future Proceedings:

   • Parenting Plans: Can be considered by a court in future proceedings

   • Parenting Agreements: If formalized, they carry more weight in court

   • Parenting Orders: Set the baseline for any future changes or proceedings

5. Consequences of Non-Compliance:

   • Parenting Plans: No direct legal consequences

   • Parenting Agreements: Consequences depend on whether they're formalized

   • Parenting Orders: Non-compliance can result in legal penalties

Choosing the Right Option

The choice between a parenting plan, agreement, or order depends on various factors, including:

• The level of cooperation between parents

• The complexity of the arrangements

• The need for legal enforceability

• The desire for flexibility

Parents who can communicate effectively and agree on arrangements might prefer a parenting plan for its flexibility. Those who need more structure or have a history of conflict might opt for parenting orders to ensure compliance. It's important to note that even if parents have a parenting order, they can still create a subsequent parenting plan that may override certain aspects of the order. This provision allows for some flexibility as children's needs change over time. In conclusion, while parenting plans, agreements, and orders all aim to establish clear arrangements for children's care after separation, they differ significantly in their legal status and implications. Parents should carefully consider their situation and seek legal advice to determine the most appropriate option for their family's needs.

Published by:

Published by, Christine Weston
Founding Director and Creator of Divorce Resource
Australian Nationally Accredited Mediator and Divorce Coach

This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full Divorce Resource.com.au Disclaimer here