It is in the best interests of the children of separating
parents that the parents reach agreement as to their ongoing
Separating parents may reach agreement in relation to the care
arrangements for the children by way of:
An informal, unwritten agreement;
A written, signed and dated Parenting Plan; and
Parenting Orders made by the Family Court.
In deciding which of these approaches is best for the children
it is necessary to consider the differences.
An informal, unwritten agreement will work well for separated
parents in limited circumstances where the parent/s:
do not undermine the parenting of the other parent;
actively encourage the relationship between the children, the
other parent and their extended family; and
otherwise agree on all aspects of parenting.
A Parenting Plan is a written, signed and dated agreement made
between separating parents in relation to:
the care arrangements for the children, including with whom
they live and the time the children are to spend with the other
parent and/or another person;
the decision making to be made by a parent and/or another
the communication a child is to enjoy with another person;
agreement on the method of discipline of the children;
how to facilitate future discussions about the care
arrangements for, or issues in relation to, the children; and
the process to be used in resolving disputes about the terms of
the Parenting Plan.
A Parenting Plan may be a good option for parents
work well together and are able to resolve their own
trust one another with the ongoing arrangements for the
are seeking a large element of flexibility with these
Unfortunately, this is not the case in a large portion of
While Parenting Plans are flexible and are ideal for parents who
get along well, they are not legally enforceable.
Parenting Orders are Orders made by the Family Court, made
either with the consent of both parents or following a defended
Parenting Orders are a likely good option in circumstances where
certainty and enforceability are of primary importance to either
When agreement has been reached, the process of filing an
Application for Consent Orders in the Family Court is simple and
just requires the approval of a Court Registrar once the best
interests of the children have been considered. This decision
can be made in the absence of the separating parents.
Parenting Orders are enforceable. If a parent breaches a
Parenting Order a Contravention Order can be filed in the Family
Court. There are sanctions imposed for breaches of Order.
Parenting Orders versus Parenting Plans
If there is a signed and dated Parenting Plan in place and
proceedings are later issued in the Family Court, the Court is
required to have regard to the terms of the most recent Parenting
Plan signed by the parents if it is in the best interests of the
child for the Court to do so.
The terms of the Parenting Plan will override the Parenting
Orders to the extent the terms are inconsistent. An exception
applies if it can be shown the Parenting Plan was signed by a
parent under duress, coercion or threat.
Care must be taken to obtain independent family law advice prior
to signing a Parenting Plan. The Parenting Plan might have
some future influence on a Judge if the matter were to proceed to a
trial before the Family Court.
It is important that separating parents obtain independent legal
advice prior to signing a Parenting Plan, both before or after
Parenting Orders have been made by the Family Court.
The flexibility afforded by Parenting Plans must be weighed
against the legal enforceability of Parenting Orders.
Whichever avenue is elected, the importance of obtaining
independent specialist legal advice remains.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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