Is a parenting plan legally binding?

The short answer is no, a parenting plan is not legally binding in the sense that it is not legally enforceable. However, let’s take a step back and examine what a parenting plan is and how it may differ from a parenting order.

First and foremost, a similarity between both is that parenting arrangements should be in the best interests of a child. A parenting arrangement can be in either:

• a parenting plan
• a parenting order

What is a parenting plan?

A parenting plan is a voluntary, written agreement which sets out parenting arrangements for children in the challenging times following a separation.

Parenting plans may be between parents, grandparents or other persons concerned with the care, welfare and development of a child. However, the parenting plan needs to be recorded in writing, signed and dated by the parties to the plan. The plan does not need to be in any specific format or independently witnessed.

Why make a parenting plan?

A parenting plan can be tailored to the unique circumstances of your family.

The benefits of a parenting plan include that it creates certainty in parenting arrangements whilst allowing for a change to the plan as time passes and the circumstances of the family alter. For example, when children commence primary or secondary school. This level of flexibility, afforded to the parenting plan, stands in contrast to parenting orders which are difficult to be amended, set aside or discharged.

A family dispute resolution service may be able to help you make a parenting plan.[1]

What is included in a parenting plan?

A parenting plan may typically include matters such as:

• where the children live
• who the children spend time, and communicate with
• details regarding the children’s schooling or childcare
• the cultural needs of a child
• medical issues surrounding a child and their treatment  
• financial support for the children (however, a Child Support Agency cannot enforce these terms unless the terms are also incorporated into a valid child support agreement),
• arrangements for special days such as birthdays and holidays.

Importantly, consideration should be given to the process to be adopted in the event that the plan requires alteration, or disagreements arise with respect to the parenting plan.

How do I decide between a parenting plan and parenting order?

A parenting order is an order made by the court about matters to do with children.[2] This may include:[3]

• the person who the children live with
• how long the children spend with each person(s)
• the allocation of parental responsibility for the children
• maintenance of the children
• aspect of care, welfare or development of the children

Furthermore, a parenting order is a legally enforceable document that parents are required to abide by. Parenting orders can be made by:

• consent, that is by agreement between the parties (this is filed with the court)
• by the court, in circumstances where the parties cannot agree and a hearing is required.

If both parents agree to parenting orders being made, they can apply to the court for parenting orders to be made by agreement. The parties may wish to obtain an order based on the terms of their parenting plan.

Furthermore, the biggest difference between a parenting plan and a parenting order, is that parenting orders are legally binding and enforceable by the court, and a parenting plan is not. There are no legal repercussions or consequences by a court for breaching a parenting plan whereas there can be serious consequences for breaching a parenting order made by the court.

The most appropriate forum for a breach of a parenting order is before the court.[4]

How can DSA Law help?

We understand that there are many challenges to face following a separation. You may still remain confused about how best to document the arrangements relating to your children or you may have questions on the financial aspects of your separation.

If you have a family law enquiry, please Contact Us via our Website or Call us on (03) 8595 9580 and one of our team will be able to assist you.

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[1] You may attend mediation or seek out other professionals to assist you. For example, the Family Relationship Advice Line may be a helpful place to start.

[2] Family Law Act 1975 (Cth) ss 60CA, 64B. 

[3] Family Law Act 1975 (Cth) s 64B.

[4] Family Law Act 1975 (Cth) s 70NFB.