Are you confused about the difference between a Parenting Plan and Parenting Orders? You may already be aware that only Parenting Orders are legally binding and enforceable. But if that’s the case you may be wondering, why even bother with a Parenting Plan then? Here’s why a Parenting Plan is a great idea—and when Parenting Orders are more suitable.
What’s the difference between a Parenting Plan and Parenting Orders?
First, what exactly are these two family law documents? Both documents are agreed and signed documents setting out practical details of children’s care, welfare and development. All issues affecting the children are set out in writing in a simple, concrete manner making arrangements clear and predictable for everyone. With crystal clear provisions setting out the children’s living arrangements and what time they spend with each parent, changeovers, day-to-day care, holidays, special occasions, medical care, schooling, religious matters and so on, parents can greatly reduce potential misunderstandings and disputes, whether the agreement is set out in a Parenting Plan or Parenting Orders.
However, the major difference is that Parenting Orders are orders made by a court about the parenting arrangements for a child, either based on agreements between the parents (“consent orders”) or on the decision of a judge at the end of a trial. As such, Parenting Orders are legally enforceable documents. On the other hand, Parenting Plans are simple, non-binding agreements between parents.
Another important difference is that Parenting Orders can’t incorporate everything that a Parenting Plan can—in this regard, Parenting Plans afford parents more flexibility about what they can include to suit their circumstances.
(Read more on what you can put in your Parenting Plan on our blog here.)
What are the advantages of Parenting Plans?
- Parenting Plans can be flexible
Your Parenting Plan is the “default” mode for arrangements about seeing the kids. If you and your ex have a good relationship and co-parent well, you might each see the kids whenever you want and not be too concerned with sticking to exact hours and times. For this reason, Parenting Plans are often preferred for situations where there is both trust and a need for some flexibility.
- Parenting Plans provide future clarity
While going into a lot of detail about times and days may seem like a headache, it often saves a lot of grief down the track. Even if you are currently getting along well with your ex, it’s usually when you start not getting along that your Parenting Plan becomes critical and each of you will need to rely on seeing the kids strictly according to the plan. In other cases, you may already know that co-parenting with your ex is going to be difficult. In that case having a highly detailed and specific parenting schedule will be very important.
- Parenting Plans can be easily changed
As children grow and circumstances change, it’s always necessary to review and adjust existing parenting arrangements from time to time. A Parenting Plan can be easily cancelled or changed at any time with the agreement of both parents and by making a newly written, dated and signed agreement. The process is simple, inexpensive, easy to execute and faster than going to court to change Parenting Orders. Also, with final Parenting Orders, there is no automatic right to return to Court to have them varied. The Court can vary final Parenting Orders when:
- Both parents consent to changing the Parenting Orders.
- If there’s been a material change in circumstances since the making of your final Parenting Orders, warranting re-opening your parenting matter. You may have to prove to the Court what that change is.
This step is not necessary if you have a Parenting Plan and it can be varied if both parents agree, or if one parent decides to start Court proceedings.
- A Parenting Plan can be a great starting point
If you and your ex have a working Parenting Plan it’s quite simple to formalise the arrangements by submitting the plan to court with an Application for Consent Orders. It is then built into Parenting Orders which have the same legal effect as any other order made by a court. This can be helpful if you and your ex want a trial period to see how the children and each of you adapt to a particular arrangement before converting it into Consent Orders once you’re both satisfied that the agreement is workable long-term.
- While not legally binding, Parenting Plans do have legal implications
Although Parenting Plans are not legally enforceable agreements like Parenting Orders made by a court, they do have some legal implications. If you and your ex don’t agree on parenting arrangements and end up needing the Family Court’s ultimate determination, the court must consider the extent to which each of you has complied with your obligations in relation to your child, including any set out in a Parenting Plan. As such, if you draw up a Parenting Plan with your co-parent, make sure you stick to it.
To be recognised by law as a Parenting Plan though, the document must be developed in a particular way: although it can take any form, it must be written down, dated and signed by both parents, and it has to have been entered into free of threat, duress or coercion.
How do you know which is best for you?
Bearing the above in mind, how do you know whether to choose a Parenting Plan or to seek Parenting Orders? A lot depends on your relationship with your ex, and how well you can agree on arrangements for the kids and trust that you’ll each stick to the plan.
If you have the good fortune to have a good relationship with your ex, and co-parent well, writing out a detailed Parenting Plan can seem unnecessary. However, if six months after you divorce, you and your ex start having problems around parenting, your Parenting Plan will end up being a crucial document. Relationships change, people remarry or move, or careers change. There are plenty of things can affect how much each of you sees the kids. If you don’t sit down and map out a schedule now, dealing with changes in the future will be much more difficult.
Compared to having nothing in writing, a Parenting Plan will provide more certainty and clarity around your informal agreements with your co-parent. It will help all involved to really understand what is expected of them, and it can be a very useful reference document, especially over the years. However, it’s still sensible to progress to formalising your agreement as Parenting Orders, because circumstances and relationships with exes can drastically change.
Creating a Parenting Plan will take time and effort but will pay off in the long run. A stable Parenting Plan allows parents and children to avoid confusion about arrangements and helps reduce conflict, helps kids adjust to their new circumstances and makes the whole family feel more secure about the situation. But in circumstances where you want to have stronger legal certainty and enforceability, Parenting Orders may be preferable since they offer the protection of being a legally enforceable agreement and have penalties for contraventions.
It’s probably going to come down to whether you prefer the flexibility of a Parenting Plan or the security of having a legally binding Parenting Order. Either way, if you are considering a Parenting Plan or Parenting Orders, make sure you obtain legal advice before signing anything.
Two excellent resources
If you’d like more help with creating a Parenting Plan, make sure you take a look at this guideline from Relationships Australia. And if you’re after more information on Parenting Orders, don’t forget the government’s official “Parenting Orders handbook” created to help families, especially those with less complex needs, make workable parenting orders without going to court. The handbooks include sample orders which may be very helpful too.
Do you need assistance with parenting arrangements, whether you need help with a Parenting Plan or drafting a set of Parenting Orders? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.