Separation can cause many challenges for parents and children alike, including stress and uncertainty around the children’s care arrangements. It is important to understand your options.
There are two main ways to formalise parenting arrangements, firstly, through a parenting plan and, secondly, through Consent Orders. Both come with their own advantages and disadvantages. So, which option is best for you and your family?
What is a parenting plan?
A parenting plan sets out the parenting arrangements for a child or multiple children.
Parenting plans are typically entered into jointly by the parents when they agree on the care arrangements for a child.
The Family Law Act 1975 (the Act) governs parenting plans and the requirements for a document to be recognised as a parenting plan.
Under the Act, a parenting plan is an agreement that:
- Is in writing;
- Is or was made between the parents of a child/ren;
- Is signed by the parents of the child/ren;
- Is dated; and
- Deals with one or more specific things, including but not limited to:
- The parent that the child will live with;
- The time that the child will spend with the other parent;
- The allocation of parental responsibility for a child;
- The communication a child will have with the parents; and
- Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
A parenting plan must be made free from any threat, duress or coercion.
Advantages and disadvantages of a parenting plan
Some of the benefits of a parenting plan include:
- Parenting plans can be varied periodically for example, to adapt to the changing needs of children. By contrast, it can be more difficult to periodically vary Consent Orders;
- They can be completed without the need for legal assistance;
- If you seek legal assistance, they may be more cost effective than Consent Orders;
- They can be relatively simple to draft, especially when compared to an Application Consent Orders and minutes of consent;
- A parenting plan is not a formal Court Order, so it may be more flexible and easier to change, to reflect the child’s or parents’ changing needs;
- They may be written in less formal terms than a Consent Order; and
- They may be less detailed than Consent Orders, as they don’t have to address all of the care arrangements for the child.
Some of the disadvantages of a parenting plan include:
- As they may be less detailed than Consent Orders, this may leave room for disagreement about anything not included in the parenting plan;
- A parenting plan may be varied or revoked by agreement in writing between the parents, so arguably, it may be easier for a parent to stop complying with the agreement; and
- A parenting plan is not enforceable by the Court, meaning if a parent fails to follow the agreement, it may be difficult to enforce. However, if an issue arises and you commence proceedings, the Court may consider the terms of the most recent parenting plan when making a parenting Order and parenting plans are often an important piece of evidence in future parenting proceedings.
What are Consent Orders?
Consent Orders for parenting are Court Orders that formalise the agreement reached between parties about the care arrangements for a child or multiple children. Consent Orders for parenting are also governed under the Act.
To enter into Consent Orders, you and the other party (usually the other parent) complete and file specific documents with the Federal Circuit and Family Court of Australia (the Court).
One document you file is an Application for Consent Orders, providing the Court with information about, including, but not limited to, the child, parents, and the current and proposed care arrangements.
This provides the Court with information to assist in determining if the Orders are in the child’s best interest, which is the paramount consideration of the Court.
You and the other party also complete and file a Minutes of Consent, setting out the agreement that you have reached, along with other accompanying documents. The Minutes of Consent may cover similar things as a parenting plan and may be written in a similar, but more formal manner.
They are the terms of the orders that the parties are seeking to be made by the Court. Once Consent Orders are made by the Court, they are binding and enforceable on the parties.
Advantages and disadvantages of Consent Orders
Some advantages of Consent Orders include:
- They may be completed by a party without the need for legal assistance. The Court has a step-by-step guide on how to apply for Consent Orders on their website, which may assist self-representing parties to complete the process;
- Consent Orders are made by the Court and legally binding on the parties. This means that both parties must follow the Orders, and if either party fails to do so, there may be serious consequences;
- As the Consent Orders are legally binding on the parties, if one party is not complying with the Orders, the other party may have more access to remedies through the Court; and
- They may only be changed in limited circumstances, including for example, when there has been a significant change in circumstances or by consent between the parties. This may also be a negative, as if you wish to change the Orders and are unable to reach agreement, it may be a complex and costly process to apply for a change through the Courts.
Some disadvantages of Consent Orders include:
- They may be completed by a party without the need for legal assistance, however it is arguably more complex to apply for Consent Orders than it is to enter into a parenting plan;
- If you have a lawyer assisting you, it may be more costly to draft, as multiple documents are filed (for example, the Application for Consent Orders and Minutes of Consent), unlike a parenting plan;
- If the Court does not consider the Minutes of Consent to be in the child’s best interest, they may not make Consent Orders;
- It may be more difficult to vary Consent Orders then a parenting plan, as you may wish to formalise the variation with the Court; and
- To file an Application for Consent Orders and the accompanying documents, the Court has a filing fee.
Parenting plan or Consent Orders – which do I choose?
There are many advantages and disadvantages to parenting plans and Consent Orders.
There may be more flexibility to vary a parenting plan if the needs of the child or parents’ change and it may cost less to enter into a parenting plan, when compared to Consent Orders.
Consent Orders are legally binding and enforceable on the parties, arguably providing greater certainty on the arrangements for the child.
They also provide for more access to remedies if a party does not comply with the Orders.
Daykin Family Law is here to help
It can be difficult deciding if a parenting plan or Consent Orders is best for you and your children, and the answer may likely change depending on your circumstances. If you need assistance deciding, or with negotiating and drafting a parenting plan or Consent Orders, experienced family lawyers like Daykin Family Law can help. Contact Daykin Family Law today for clear, practical, and supportive legal advice