An easy legal guide to parenting agreements, plans and orders

If you’re going through a separation or divorce in Australia, naturally, your children’s well-being and best interests are paramount to your decision-making. Enter parenting agreements, parenting plans and parenting orders. 

By Ally Gilmour, Associate at Australian Family Lawyers, Gold Coast

Parenting agreements, plans and orders can help co-parents navigate the challenges of raising children separately and provide clarity on responsibilities and expectations with detailed childcare arrangements.

In this article, we explore what exactly these types of agreements are so you can make informed decisions for your family’s future.

What is a parenting agreement?

Firstly, a parenting agreement is a written agreement setting out the arrangements for children, such as:

• where the children will live; 
• what happens if your children get sick; 
• how the parents will communicate; and 
• various other arrangements. 

Additionally, there are several different ways to document parenting arrangements including:

1. Parenting plans; and
2. Parenting orders.

The suitability of each parenting arrangement option will depend on your family situation, and whether you can come to a consensus on parenting matters with your former partner. 

Parenting plans

A parenting plan is an informal document that sets out the agreed parenting arrangements for children. Furthermore, it’s not filed in court and is not legally binding. It’s a document that is best suited to parents who can come to an agreement on parenting issues or for temporary periods such as: 

• from the time of separation until you can agree on a final arrangement; or 
• when children are young before you and your former partner are able to decide what is best for your children. 

Importantly, a parenting plan can be simple or extensive. Other than being dated and signed by both parties, there are no strict requirements for parenting plans. Section 63C(2) of the Family Law Act sets out some matters that parenting plan may address:

• The allocation of parental responsibility
• With whom the children will live
• The persons the child/children will spend time with
• With whom the child/children will communicate with
• The maintenance of the child/children
• The process for resolving disputes
• The process for altering the parenting plan to account for changing circumstances
• Aspects of care, welfare, development, or any other aspect of parental responsibility

Parenting plans aren’t legally binding and don’t need to be drafted by a lawyer. Nonetheless, it’s still recommended that you seek legal advice when creating one. This is because when making parenting orders, the court must consider the most recent parenting plan and if it’s in the best interest of the child. Then, if court hearings eventuate, your parenting plan may come into play.

Parenting orders

There are two ways a parenting order can be made by the court:

1. By consent, if the parents agree to the parenting arrangements –  these orders are often referred to as Consent Orders; or
2. By the court after a parent files an application and there is a hearing.

Consent orders

A parenting consent order is an order made by the court. It sets out the agreed parenting arrangements for your children, which is legally binding and enforceable. Rather than having the court hear your parenting matter and come to a decision for you, a parenting consent order is made when both parents come to an agreement. 

The court makes the agreement enforceable, provided that they’re satisfied that the agreement is in the best interests of the child. While consent orders are binding and parenting plans are not, a parenting plan signed after a consent order is made may override the consent order. 

Parenting orders made by the court

Alternatively, parenting orders are made by the court.  If you and your former partner can’t come to an agreement on parenting arrangements and after there has been a hearing. This is for matters where a genuine effort has been made to resolve matters using a dispute resolution practitioner. You’ll require a certificate from your dispute resolution practitioner to verify that a genuine effort has been made. In cases of abuse or family violence, this requirement can be waived. Parenting orders are legally binding, and if you breach the terms of your parenting plan, the court may impose a penalty. 

An invaluable resource

In conclusion, parenting agreements, plans, and orders can be invaluable resources for co-parents navigating separation or divorce in Australia.

Which of these parenting arrangement options is best suited to your situation will depend on the circumstances of your case. No matter whether you decide on a parenting plan, a parenting consent order, or a parenting order, it will rely on you and your former partner’s ability to maintain an effective co-parenting relationship and reach a consensus on important long-term parenting decisions. Instances of family violence or abuse will also impact the viability of different parenting plans.

If you’re going through a separation or divorce, it’s worth exploring these options and working with a family lawyer to create a plan that works best for your family’s unique needs. For further reading, our guide to child custody schedules in Australia you may find helpful.

If you have any further questions on parenting agreements or creating or changing one, call our friendly team directly or request a call back via the form below.