Parenting Plans or Consent Orders – Which is best?

There are two ways to formalise agreed parenting arrangements for children under the Family Law Act (Cth) 1975 (“the Act”).  The options are either a parenting plan, or consent orders.  Before signing either you should obtain legal advice as to the effects of the document as they each impact a parent’s rights and responsibilities in different ways.  If parenting arrangements cannot be settled by agreement by either of these options, then the only avenue left for a parent is to apply to the family courts for parenting orders.

What is a parenting plan?

A parenting plan is an informal agreement between parents which can deal with any of the following:

1. who a child is to live;
2. the time a child is to spend with each parent or others;
3. who has parental responsibility for the child (in most cases it will be both parents);
4. the communication a child is to have with another person or other persons;
5. maintenance and financial support of a child;
6. the process to be used for resolving disputes about the terms or operation of the plan;
7. the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan; or
8. any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

To be accepted as a parenting plan under the Family Law Act the plan must;

1. be in writing;
2. be made between the parents of a child;
3. be signed by the parents of the child;
4. be dated; and
5. deal with one or more of the matters that relate to the parenting of a child as listed above.

Parenting plans can be drafted when parents have reached agreement on parenting matters for a child.  A parenting plan is less formal than Consent Orders.  There are not any set forms.  Parties only have to comply with the 5 characteristics above for it to be accepted as a parenting plan under the Act.  The parenting plan can be as complicated or as simple as you like.  A key point to remember is that it must be clear to anyone reading it as to what has been agreed to.

Parenting plans are normally used by parents who want something more than a verbal agreement with the other parent.  Parents can draft the plan together or with the assistance of a mediator.   By having arrangements set out in writing it is hoped that parents can avoid disputes which typically arise when they only have verbal agreements to rely on.

A benefit of parenting plans is that they are easily changed, as long as it is by agreement.  Parents do not have to file the agreement with a court, and they do not have to ask the court to vary the agreement when they want to change it.  To change an agreement, the parties need only draft a new agreement, and sign and date it.

Importantly it should be noted that parenting plans are not court orders.  If a party breaches a term in a parenting plan, they are not breaching a court order.  It is not enforceable by a court. However, if a parent breaks a parenting plan, the other parent may well take them to court. 

A court will place great weight on any parenting plan that is in place as it was an agreement by the parents and signed by them.  A court will want to know why the plan was not followed.  If the court believes that the terms of the parenting plan area in a child’s best interests, then they may make similar orders to what was in the agreement. 

An indication of how important parenting plans are under the Act is that even though a parenting plan is not a court order, it can vary or override an earlier court order. If a parenting plan is signed after a court order has been made, a party is not able to enforce the previous court order.  If you are in the position where you are about to sign a parenting plan, and there is already a parenting order in place, you should seek legal advice as your earlier court order may no longer be enforceable.

Should you make a parenting plan?

Parenting plans are suitable to parties who are wanting to put in place a cost-effective arrangement for their child and avoid having to be involved in the court system.  They tend to work best when the parents can communicate with each other effectively and there is little conflict between them over parenting issues.

What are Consent Orders?

When parents are able to agree on parenting arrangements for a child, they can make an application to the court for Consent Orders.  Instead of just being an agreement between the parents, consent orders are orders of the court.  They set out clearly what each parent must do.  They are enforceable by the court. 

If a party has breached the order without reasonable excuse, they are at risk of being punished for not complying.  Those punishments can include the court making new parenting orders which favour the other parent, monetary fines, make up time with the other parent, and in extreme circumstances imprisonment.

Parenting orders are usually between the parents of a child but not always.  In certain situations grandparents or other relatives of a child can make consent orders in relation to a child who is related to them.   This is a very specialised area of family law. If you are in this situation, you should seek legal advice to ensure that the court will make the orders that you are seeking.

To obtain Consent Orders, an application has to be made to the court using the correct court forms.  The application form sets out the important facts in relation to the parents and the child/ren.  The Application also includes a signed copy of the proposed draft parenting orders.  Usually a court registrar will review the orders and the information provided.  If after considering all of that information, the registrar decides that the proposed orders are in the best interests of the child, the order will then stamped by the court, and a copy provided to each of the parents.  The parents must then comply with the orders.

When should you apply for consent orders?

Consent Orders are more suitable to parents who need a greater level of certainty that the arrangements agreed to with the other parent will be followed.  As you will remember the terms of a parenting plan are not enforceable.  The terms of a Consent Order are orders of the court.  In our experience, parties are much more likely to comply with and follow consent orders because they are actual orders of the court and there are repercussions for not following them.

Which option is best for you?

Whether consent orders or a parenting plan best suits your needs is a difficult question to answer.  It will depend on your particular circumstances.   Parenting orders will provide certainty to parents who are concerned that the other parent may not following through with any agreement made.  Parenting plans are suitable to parents who trust each other and merely want to set out arrangements which have been agreed to.

With either option, there has to be agreement between the parents.  It is always preferable for parents to reach agreement on parenting matters and formalise these without one party filing an application for parenting orders because agreement could not be reached.  Once that has happened, all control over what are the most appropriate parenting orders is handed over to the court, with the strong likelihood that one or both parents will not be satisfied with the orders made.

If you would like assistance with drafting either a parenting plan or consent orders, or require advice about which arrangements are most suitable to you and your child/ren, the please contact our office to arrangement an appointment.