The key difference between a parenting plan and a parenting order is that an order is made by a court and is therefore what’s known as ‘legal and enforceable’.

A parenting plan, by contrast, has no legal force but is a document that shows the intent of separated parents on how they will co-parent their children until they are 18 years of age.

Each option depends on the nature of a person’s circumstances. Two people who separate amicably and are largely in agreement about how their children should be raised may find a parenting plan they both agree to is sufficient to cover their needs.

Those who have trouble agreeing on the best way to raise children, including disputes about time spent with each parent, the cost of child-rearing and other important life decisions such as education or religious upbringing, or where there is domestic family violence involved, will more likely need the Federal Circuit and Family Court to decide the issue.

More detail on the differences between parenting plans and orders

A major advantage of forming a parenting plan is the relative lack of formality, time and expense in creating one when compared with going to court.

A parenting plan will often be created by an ex-couple during a mediation process about financial and living arrangements after the relationship ends.

Dispute resolution through mediation will help the parties narrow areas of disagreement so that they can create a plan they can both live with. The plan might deal with the major issues of shared parental responsibility and decision making, including care and living arrangements, financial support, maintaining relationships with other family members such as grandparents, how the parents communicate with one another and how any future disputes are to be resolved.

Again, the major disadvantage of a parenting plan is that if one parent breaches what is agreed to, there is no immediate option for the other parent to ensure compliance. What the parent alleging the breach can do is apply to the court for an enforceable order. The court will take into account the existence of the parenting plan, and ask the breaching party why they did not observe its terms. The result may be a parenting order which is less favourable to the parent who did not abide by the parenting plan.

Two separated people may also come to their own agreement about parenting arrangements but instead of signing off on it as a ‘plan’, they apply to the Court for what is known as ‘consent orders’. Consent orders carry more weight than a parenting plan and have the same force and effect as if you had gone to court to get a decision from a judge. This means there are consequences should you repeatedly ignore the terms of the consent orders, including fines and, in extreme cases, jail terms.

In some cases, two people may work out an informal parenting plan sometime after they have consent orders in place. If this is the case, the terms of the parenting plan may override the consent order. Expert legal advice should be sought before signing any document that could potentially render a court order inoperable.

Parenting orders made by a court when two separated parents simply cannot agree on how to raise their children, or where family violence is present (or the risk thereof), is also legally binding and carries penalties for those who breach the orders.

Before an application can be made to the court for parenting orders, or if one party seeks a variation to existing parenting orders, the Family Law Act 1975 stipulates that the parties must first undertake dispute resolution to try and narrow the differences between them in the hope of reaching an agreement the Court could formalise as consent orders.

A Section 60I certificate is issued by the mediator or dispute resolution practitioner to both parties to certify to the Court that both parties made a ‘genuine effort’ to resolve their parenting differences. This certificate is necessary before an application can be made to the court.

Which course of action is best?

If you’re unsure whether a parenting plan or a parenting order from a court is the best way to go, speak to experienced family lawyers at Big Law.

Our expert professionals can guide you through the upsides and downsides of both courses of action.

Parenting plans, generally speaking, are quicker, cheaper and less formal to put in place, and can ensure ongoing civil relations between two parents who are no longer in a relationship. They can be as detailed or as simple as the parties involved wish them to be, and can avoid heavy-going legal jargon in how the agreement is expressed.

While a lawyer is not required to make a parenting plan, seeking the advice of a family lawyer on the drafting and signing of a plan is a very good idea.

Parenting orders involve longer time frames and some expenses. While the parties do not need to appear in court for consent orders to be made, court-made parenting orders are more complex and time-consuming.

If anything in this post applies to your situation, contact us today for understanding advice on your situation.