If you’re facing a relationship breakdown and have children, you’ll need to work out parenting arrangements, which are generally organised through a parenting plan or consent orders.
In simple terms, both are really just documents that list any agreements made between you and your ex-partner regarding how to raise your children. They cover many aspects of your child’s or children’s lives, and how their needs will be met. Parenting plans are informal, and consent orders require court approval and are legally enforceable. Understanding the difference will help you to make choices that are best for you and your family, now and in the future.
Parenting plan or consent orders, where to start?
Many people start with a parenting plan in the early days of co-parenting, which is an informal written agreement made between parents. It’s a great way to get clear about what works and what needs to be addressed, and documents any parenting agreements reached about proposed arrangements.
Parenting plans are usually a simple written agreement between parents, and generally don’t require a lawyer to draft, but can be drafted by a lawyer. They outline things like where the children will live, when they will see each parent, who will pick them up and drop them off at school, and how major decisions will be made – or what steps to follow in the event there is an emergency for a child or either parent. A parenting plan can also form the basis of consent orders.
If both parents agree on the arrangements set out in a parenting plan and want to make them legally enforceable, they can apply to the Federal Circuit and Family Court of Australia for consent orders. Consent orders are a more formal legal document that turns the agreed arrangements into court orders. This gives the agreement legal force, meaning it can be enforced by the court if one party doesn’t follow it.
Unlike parenting plans, consent orders must be approved by the court, which will only make the orders if they are satisfied that the arrangements are in the best interests of the children. While you can apply for consent orders without a lawyer, it’s often helpful to get legal advice to make sure the wording is clear and the application process is handled correctly. If you and your former partner cannot agree on parenting matters, you can also apply for parenting orders, which have the same legal effect as consent orders, but will be decided on by the court system.
The best interests of the children
Under the Family Law Act, any parenting arrangement made must be in the best interests of the child. This includes making sure the child is safe, not exposed to family violence or psychological harm, and has the opportunity to maintain a meaningful relationship with both parents where it is safe to do so. The court will also consider factors like the child’s age, emotional needs, cultural needs, personal views (depending on maturity), and the practical impact of any arrangement on their daily life.
Areas to cover in your agreements
Whether you are using a parenting plan or consent orders, it is important to cover the key areas of care. This usually includes:
- Where the child will live
- How much time they will spend with each parent
- How parents will communicate with the child when they are apart
- How decisions will be made about education, health, culture and religion
- How parents will communicate
- How parenting issues will be resolved
It’s also useful to include details about school holidays, special occasions, travel arrangements and how to handle disagreements or future changes.
The nature of your relationship
Your relationship with the other parent will often guide what kind of arrangement is most suitable. If you communicate well and want flexibility, a parenting plan may suit your needs. If your relationship is high conflict or you need the certainty of legal enforcement, consent orders are a better choice.
They can give you more protection if your former partner does not follow the agreement or if you need to go to court later on. There can be serious consequences if either party does not adhere to orders, and the court considers that there is no reasonable explanation for this.
Legally enforceable?
The main difference between a parenting plan and consent orders is legal enforceability. A parenting plan is not legally binding, which means that if one parent does not follow it, the court cannot enforce it. Consent orders, on the other hand, are legally binding. If one parent does not comply with consent orders, the other parent can apply to the court to have them enforced. The court can impose penalties and make further orders if needed.
If there is a history of repeated breaches of informal agreements, a parenting plan will not provide enough protection. In those cases, it is better to apply for consent orders or parenting orders through the court. These orders are made in the best interests of the child and can include detailed conditions to keep the child and the other parent safe.
What happens if a parenting plan isn’t followed?
Parenting plans are informal agreements and lack legal enforceability. If one parent fails to adhere to the agreed arrangements, the other parent may seek Family Dispute Resolution or apply for a parenting order through the court. The court will consider the child’s best interests and may issue orders to ensure compliance.
What happens if consent orders aren’t followed?
Breaching consent orders can have serious legal consequences. If a parent fails to comply, the other parent can apply to the court for enforcement or contravention. Possible outcomes include fines, compensation for losses, or, in severe cases, imprisonment. The court will assess the nature of the breach and the reasons behind non-compliance. Seeking legal advice is crucial to understand your rights and responsibilities and to determine the appropriate course of action.
Proposed consent orders
Consent orders can be based on an existing parenting plan if both parents agree to the terms. The agreement will need to be put into a specific format for the court to review and approve. The court will consider whether the proposed orders are practical and whether they support the best interests of the child. A family lawyer can help draft the documents so they are clear, complete and legally sound.
Obtaining consent orders
To apply for consent orders, both parents need to complete an Application for Consent Orders and submit it to the Federal Circuit and Family Court of Australia, along with a Minute of Order that sets out the terms they are asking the court to approve.
The application must be signed by both parents, but only one needs to file it. If the court is satisfied that the proposed arrangements are in the best interests of the children, it will make the orders without the need for a court hearing. Once made, consent orders are legally binding and enforceable, offering greater certainty and protection for everyone involved.
Interim vs final orders?
The court can also make interim or final orders in family law cases, depending on the stage of your parenting matter. Interim orders are temporary and often used when parents need short-term arrangements while waiting for a final decision, or are unable to reach an agreement with the other party. Final orders are long-term and stay in place unless varied or discharged by the court due to a significant change in circumstances.
Parenting consent orders vs parenting orders
Consent orders for parenting matters are made through voluntary agreement by parents and generally require no court intervention, as long as they are drafted and submitted correctly and in the best interests of the children involved.
Parenting orders, on the other hand, require a similar application process to consent orders; however, the decision-making process rests with the court rather than the parents. These orders are usually made after attempts at dispute resolution have failed. Both consent and parenting orders result in a similar outcome that is legally enforceable, and the court always focuses on what is in the best interests of the child.
Will court proceedings be necessary?
Consent orders will require court approval, but generally don’t require much intervention from the court. If you and the other parent cannot agree and informal attempts to reach an agreement have not worked, you may need to apply for parenting orders through the court. Court proceedings can be stressful, time-consuming and expensive, but they may be necessary in cases involving unresolved disputes or safety concerns.
Costs involved
A parenting plan is generally the least expensive option as it does not require legal drafting or court approval. Consent orders are more formal and involve some legal costs, but they are still relatively affordable compared to contested court proceedings. Going to court for parenting orders is usually the most costly and should only be a last resort when no agreement can be reached.
Making an application for consent orders
If there has been a significant change in your family’s circumstances, such as a relocation or a change in the child’s needs, you can apply to have the consent orders varied. Both parents can agree to the new proposed orders and submit them to the court for approval. If there is no agreement, you may need to attend mediation or apply to the court to seek a variation.
Can changes be made to consent orders?
If circumstances change, such as a parent’s relocation, a child’s evolving needs or safety concerns, parents can apply to the court to vary existing consent orders. This process involves submitting a new application, often with mutual agreement, and may require attending a court hearing. The court will assess whether the proposed changes align with the child’s best interests and uphold the principles of shared parental responsibility.
Can’t decide between a parenting plan vs consent orders?
Understanding the distinctions between parenting plans and consent orders is essential for making informed decisions about your child’s care arrangements. While parenting plans offer flexibility, consent orders provide legal enforceability, ensuring adherence to agreed-upon terms. In cases of non-compliance, especially with consent orders, legal avenues are available to enforce the arrangements, prioritising the child’s best interests.
If you’re unsure whether to start with a parenting plan or consent orders, it’s best to get legal advice. At Stewart Family Law, we can guide you through your options, draft clear and enforceable agreements, and keep your child’s best interests at the centre. Get in touch with us today to find out how we can support you.
