Family law matters are never easy, especially when they children involved. One of the biggest priorities after separation is deciding how important parenting decisions will be made. These decisions include, where the children live, how much time they spend with each parent, and who is responsible for major decisions about their health, education, and wellbeing.
Under the Family Law Act 1975 (Cth), there are two main ways to formalise parenting arrangements: Parenting Plans and Parenting Orders. Both focus on what’s in the best interests of the child, but they work in different ways.
What is a Parenting Plan?
A Parenting Plan is a written agreement between parents that outlines arrangements for the care, welfare, and development of their children following separation. It must comply with section 63C of the Family Law Act 1975 (Cth), which requires that the plan:
- Be in writing
- Identify the parents
- Be signed and dated by both parents
Importantly, a Parenting Plan does not require court approval.
Key Features of a Parenting Plan
A Parenting Plan can address a wide range of matters, such as:
- The time children spend with each parent
- Day-to-day care responsibilities
- Arrangements for holidays, birthdays, and special occasions
- Communication between children and parents
- Decisions about education, health, and extracurricular activities
- Processes for making major decisions
- Inclusion of other significant people, such as step-parents or grandparents
Advantages of a Parenting Plan:
- Flexibility: Parenting Plans can be amended at any time, provided both parents mutually agree to the changes.
- Cost-Effective: Parenting Plans are typically developed through negotiation or mediation, making them a low-cost option.
- Informality: They are ideal for parents who can cooperate effectively and prefer a simple arrangement without court involvement.
Disadvantages of a Parenting Plan:
- Non-Enforceability: Parenting Plans are not legally binding. If one parent fails to comply with the terms of the plan, there are no direct legal consequences.
- Court Consideration: In the event of a dispute, the Parenting Plan may be considered by the court as evidence of the arrangements that have been in place and what has been in the best interests of the child.
What is a Parenting Order?
A Parenting Order is a formal, legally binding Court order that outlines arrangements for the care, welfare, and development of children following separation. Parenting Orders can be made in two ways:
- By Consent – when both parents agree on the terms and jointly request the court to formalise their agreement through Consent Orders.
- By Judicial Decision – when parents are unable to reach an agreement, the court determines the arrangements based on the evidence presented and the best interests of the child.
Key Features of a Parenting Order
Parenting Orders address similar issues to Parenting Plans but with the added weight of legal enforceability. They typically include:
- The children’s living arrangements and the time they will spend with each parent;
- Parental responsibility and decision-making regarding significant matters such as education, health, and religion;
- Communication arrangements between the children and each parent;
- Provisions for holidays, birthdays, and other special occasions.
Advantages of a Parenting Order:
- Enforceability: Parenting Orders are enforceable by law. Non-compliance with an order can result in serious legal consequences, including enforcement applications, fines, or, in extreme cases, imprisonment.
- Certainty: They provide a clear and structured framework for parenting arrangements, offering stability and security for the child.
Disadvantages of a Parenting Order:
- Cost: Obtaining a Parenting Order is generally more expensive than creating a Parenting Plan, as it involves court proceedings, filing fees, and potentially legal representation.
- Inflexibility: Parenting Orders are less flexible than Parenting Plans. Any changes to an order require either mutual agreement and the filing of new Consent Orders or an application to the court for a variation.
- Complexity: The legal process involved in obtaining a Parenting Order can be time-consuming and stressful for parents.
Can a Parenting Plan Override a Parenting Order?
No, a Parenting Plan cannot legally override an existing Parenting Order. However, if parents later make and follow a new Parenting Plan, the Court can take it into account as evidence of changed circumstances. This may be relevant if someone applies to vary an existing Parenting Order.
Which Option Should You Choose?
- Parenting Plan: A Parenting Plan is best suited for parents who are able to communicate and cooperate amicably. It offers a practical, low-cost solution for managing parenting arrangements without court intervention.
- Parenting Order: A Parenting Order is often the better choice in situations involving high conflict, concerns about compliance, or where enforceability is essential to ensure the safety and stability of the child.
Regardless of the option chosen, the paramount consideration under the Family Law Act 1975 (Cth) is the best interests of the child. This principle guides all decisions regarding parenting arrangements.
The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our family law team if you would like to discuss your matter. Our team can be contacted on (03) 9311 8911.
