Parenting Orders and Parenting Plans in Australia Explained

Parenting orders and parenting plans are the two main ways separated parents in Australia record arrangements for their children. Parents often ask what the difference is, which one they need, and what happens if they cannot agree. This guide gives a plain-English overview under the Family Law Act 1975 (Cth), with practical points for families in New South Wales.

What is a parenting plan?

A parenting plan is a written agreement between parents about the care of their children. It can cover where the children live, how time is shared, how decisions are made, communication, holidays, schooling and special occasions. A parenting plan must be in writing, signed and dated, and generally should be made free from coercion or pressure.

The key point is that a parenting plan is not legally enforceable. It records what you have agreed and can be a valuable guide, but a court cannot enforce it in the same way as an order. It can also be changed by agreement at any time. Parenting plans suit parents who communicate reasonably well and want flexibility.

What is a parenting order?

A parenting order is a set of orders made by the Federal Circuit and Family Court of Australia (FCFCOA). Parents can ask the court to make orders by consent if they agree, or the court can make orders after a hearing if they do not. Parenting orders can deal with:

• who the child lives with
• how much time the child spends with each parent and other significant people
• who has parental responsibility for major long-term decisions
• how the child communicates with a parent or others
• other matters relating to the child's care, welfare and development

Parenting orders are enforceable, and a breach can have legal consequences. For that reason, they should be worded clearly and realistically.

How does the court decide? The best interests of the child

The court's paramount consideration is the best interests of the child. Reforms that began on 6 May 2024 simplified the way this is assessed. There are now six factors that apply to all children, including:

1. the safety of the child and the people who care for them, including from family violence, abuse or neglect
2. the child's views, if they wish to express them
3. the child's developmental, psychological, emotional and cultural needs
4. the capacity of each person to meet those needs
5. the benefit of having a relationship with each parent and other significant people, where it is safe
6. any other relevant circumstances

Additional considerations apply for Aboriginal and Torres Strait Islander children. The reforms also removed the presumption of equal shared parental responsibility. That means a court no longer starts from a legal assumption that parents will share decision-making equally. Every case is decided on what is in the particular child's best interests, and joint decision-making does not automatically mean equal time.

Family dispute resolution comes first

In most parenting disputes, parents must attempt family dispute resolution (FDR) before applying to the court. FDR is a confidential process with an accredited practitioner who helps parents work towards agreement. If it does not resolve the dispute, or is not appropriate, the practitioner can issue a certificate that is generally needed to file in court. There are exceptions, for example where there are concerns about family violence or child abuse, or in urgent matters.

FDR is not about reconciling. It focuses on practical arrangements, and many families find it far less costly and stressful than a hearing.

Which one is right for you?

A parenting plan may suit you if you and the other parent are cooperating and want an informal, flexible arrangement. A parenting order may be more suitable if:

• you need arrangements that can be enforced
• there is a history of arrangements breaking down
• there are safety concerns, or you need clear boundaries
• you want certainty, for example about relocation or overseas travel

Some parents start with a parenting plan and later formalise it as consent orders, which you can apply for without a hearing in many cases.

Practical tips for separated parents

• Keep the focus on your children. Courts look at what the child needs, not what is fair between the adults.
• Be specific. Vague arrangements invite disputes, so address handovers, school holidays, birthdays and communication.
• Plan for change. Children's needs shift as they grow, so build in review points.
• Keep communication civil and keep written records of key agreements.
• Get support. Counselling and parenting programs can help families through transition.

If there is family violence or you or your children feel unsafe, safety comes first. Legal and support services can help, and a lawyer can advise on protective options as well as parenting arrangements.

Frequently Asked Questions

Is a parenting plan legally binding?

No. A parenting plan is not enforceable in the way a court order is, although a court may consider it when deciding what is in a child's best interests.

Do I need a lawyer to make a parenting plan?

You do not have to, but legal advice can help you understand your rights and draft clear terms, particularly if you plan to convert the plan into consent orders later.

Does the law say children should spend equal time with each parent?

No. The court must decide based on the child's best interests. Equal time is only one possible outcome and will not suit every family.

What if the other parent will not attend dispute resolution?

The practitioner can issue a certificate recording that the other party did not attend, which may allow you to apply to the court. The court may take that into account later.

This article is general information only and is not legal advice. Laws and processes change, and every situation is different. Speak to a lawyer about your circumstances before you act.