When parents separate, one of the most critical issues they must address is the future care and upbringing of their children. Often, clients are unsure about the distinction between a “parenting plan” and a “parenting order.” Understanding these differences is key to making informed decisions in family law matters.

What is a Parenting Plan?

A parenting plan is an informal agreement made between parents regarding the care and living arrangements of their children after separation. It is created without the involvement of the court and provides parents with the flexibility to make changes over time as their children’s needs evolve. For example, as a child starts school or as holiday arrangements change, parents can amend their plan to suit their situation.

A parenting plan must be in writing, signed by both parents, and dated, but it doesn’t need to be filed in court. It can be handwritten, making it accessible for parents who want to avoid the formality of court proceedings. The Family Law Act 1975 (Cth) encourages parents to resolve family disputes themselves whenever possible, and parenting plans are a reflection of this principle.

The plan can address various aspects, including:

• The child’s living arrangements
• The time a child will spend with the other parent or other significant people
• Allocation of parental responsibility
• Communication methods (such as phone or email) between the child and others
• Maintenance and child support issues
• How disputes or changes to the plan will be handled in the future

Although a parenting plan offers flexibility and is usually easier to establish, it is not legally enforceable. If one parent breaches the agreement, the court cannot enforce the terms of the plan. However, a parenting plan can be used as evidence in court if the matter escalates to legal proceedings.

What is a Parenting Order?

In contrast, a parenting order is a legally binding document issued by a court that outlines arrangements for the care of children post-separation. A court can issue these orders if parents are unable to agree on the terms themselves, or if one or both parties want to formalise the arrangement.

A parenting order can address similar issues as a parenting plan, such as:

• Who the child will live with
• How much time the child will spend with the other parent or other significant people
• Allocation of parental responsibility
• Communication methods between the child and others
• Child support and other care issues

One of the key differences is that a parenting order is enforceable by law. If one parent fails to comply with the order, the other party can seek legal recourse, and the non-compliant parent may face penalties, including fines or even jail time in serious cases. Unlike a parenting plan, the terms of a parenting order cannot be changed unless an application is made to the court to vary the order.

Key Differences

• Flexibility: Parenting plans offer more flexibility, allowing parents to modify the terms as needed. Parenting orders are rigid and require court intervention to change.
• Enforceability: Parenting plans are not enforceable, while parenting orders are legally binding.
• Court Involvement: Parenting plans are private agreements between parents, while parenting orders are issued by a court and may involve hearings or other legal proceedings.
• Use in Disputes: Parenting plans can be used as a reference in court but cannot be enforced. Parenting orders can be enforced with legal consequences if breached.

At Montgomery Legal Practice, we understand that family disputes can be challenging and complex. Our experienced team is here to guide you through the process, whether you are seeking to draft a parenting plan or need assistance with a parenting order. If you are facing a family law matter, do not hesitate to contact us to discuss your situation and find the best path forward.