What is the difference between a Parenting Order and a Parenting Agreement?

A Parenting Agreement or Parenting Order sets out the arrangements for a child, or children’s care and contact.  This article explains how Agreements and Orders are made, what they contain, and how they are enforced.

What is a Parenting Agreement?

The adults who are responsible for a child (called guardians) can reach an agreement on who should have day-to-day care of a child, who else should have contact with the child, how changeovers happen, and what happens on special occasions like school holidays, birthdays, Christmas and so on.  This is called a Parenting Agreement. 

Sometimes adults make an Informal Parenting Agreement (which usually means it is not recorded in writing).  An Informal Parenting Agreement can lead to issues if the adults later recall the agreement differently, or if they cannot recall at all what was agreed. 

It is therefore recommended that parties instead have a Formal Parenting Agreement which is recorded in writing.  Having a Parenting Agreement in writing helps the parties to have certainty about the nature of their agreement and helps to avoid disputes. 

Are Parenting Agreements enforceable?

A Parenting Agreement (whether informal or in writing) is not enforceable in the Court.  That means, if one of the parties to the agreement does not follow it, the other party cannot ask the Court to make them follow the agreement.   

If compliance with an agreement is an issue or a concern, the parties can turn their Parenting Agreement into a Parenting Order by consent, and this will then be enforceable. 

If parties are not able to reach an agreement on the parenting arrangements, they can also ask the Court to make an Order instead. 

Parenting Agreements can be changed at any time, if all the guardians agree to the change.

What is a Parenting Order?

Parenting Orders also set out the care and contact arrangements for children, but they are different from Parenting agreements in the following ways:

• They can only be made by a Court;
• They are enforceable;
• They are less flexible (for instance if you want to make any changes to it, you will have to apply to the Court for a variation);
• They are more fixed (you can only apply for a variation after 2 years of the Order being made, unless you can show that there has been a significant change in circumstances).

What is the maximum age of a child that can be covered by a Parenting Order?

Parenting Orders can be made for children who are under 16 years of age, unless there are unique circumstances. 

What does “day-to-day care” mean?

“Day-to-day care” used to be called “custody”.  Day-to-day care refers to having exclusive responsibility for a child’s day-to-day living arrangements.  It is defined as including care that is provided only for one or more specified days or parts of days.

It is possible to have shared care in a Parenting Order, where two or more people have exclusive responsibility for a child on different days, or part days. 

What does “contact” mean?

“Contact” used to be called “Access”.  Contact includes all forms of direct and indirect contact with a child.  It can include overnight contact, phone contact, video calls and so on.  Where one parent does not have day-to-day care of a child they will often have contact set out in the Parenting Order to ensure that they can still maintain a relationship with the child.

How are Parenting Orders made?

This law requires that a child’s “welfare and best interests” be the first and paramount consideration when any decisions are made about a child’s day-to-day care, contact or guardianship. 

That means the priority in each case is to make decisions that are best for the child, rather than the parents, caregivers or guardians. Read more about how the Court decides on what welfare and best interests mean.

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