The Family Law Act encourages parents to agree on parenting arrangements that are in their children’s best interests.  For separating or divorcing couples, future care arrangements of their children should be their top priority. It is advisable to use precautionary documents such as Consent Orders, Parenting Plans and Parenting Orders to ensure that the terms of agreement are followed.

When discussing and attempting to reach an agreement as to what care arrangement is in the children’s best interests, the discussion between parents should consider:

• Who will the children live with? 
• Who is the primary parent and how will young children cope with spending extended periods away from that parent?
• What arrangement needs to be put in place to ensure the non-primary parent maintains a strong relationship with the children?
• Is the proposed arrangement practical taking into account such things as distance to travel, the location of the children’s school, your work commitments or children’s extra-curricular activities?
• How will financial support be maintained and allocated? 
• Is the arrangement to be fluid and change as the children get older and their views need to be considered?
• Do the parents want a formal arrangement that is documented in either a Parenting Plan or Consent Orders?
• Is the help of a mediator or Family Dispute Resolution Counsellor needed to assist you in reaching an agreement?

The discussion should be conducted in a calm manner and focused on the best interests of the children rather than each parent maintaining a position of how things should be. 

If an agreement is reached, the agreement can be set out with detail and clarity using either Consent Orders setting out the Parenting Orders or a Parenting Plan.

What are the differences between Consent Orders, Parenting Plans and Parenting Orders?

Consent Orders

When separating or divorcing couples agree upon arrangements for their children, they can apply to the Family Court for Parenting Orders. If parents are in agreement, an Application for Consent Orders is filed and the Parenting Orders can be made by way of Consent Orders.

In practice, where parties are not in agreement, an Initiating Application is filed seeking parenting orders. Often, parties will agree prior to the final hearing and the matter can be resolved by Consent Orders being made at that later stage. 

Failing agreement, if the matter does go to final hearing, parenting orders will be made by a Judge. 

If a party breaches Parenting Orders, whether the orders are made by a Judge or by way of a Consent Order, the other party can file for a Contravention Application. The Court can then take further action against the parent not complying with the Parenting Orders such as imposing penalties.

Parenting Plans

A Parenting Plan is a less formal way of making arrangements for the children. It is not a Parenting Order. 

Parents can agree on a Parenting Plan themselves or with the help of a friend, other family member or a counsellor. Seeking legal advice when writing up a Parenting Plan is encouraged but is not a legal requirement.

Instead of a verbal agreement, a Parenting Plan is a written document. Both parents sign and date the Parenting Plan. Entering a Parenting Plan demonstrates the parent’s commitment to abide by the agreed arrangements for the children.

A Parenting Plan is not a Parenting Order and does not need to be filed in Court.

The Family Law Act does require the Court to take the existence of a Parenting Plan into account in contravention proceedings, but Parenting Plans of themselves are not enforceable. Parents should be aware when deciding whether to enter Consent Orders or a Parenting Plan, a Parenting Plan cannot be the subject of any application for contravention . The legislation refers to allegations of contravention of Parenting Orders not Parenting Plans. 

What can be done if arrangements are not working?

Often parent’s circumstances change and there may need to be a relocation due to change of employment or a new relationship. As children get older their wishes warrant change. In these circumstances, if there is no agreement between parents to vary a Parenting Plan or Parenting Orders, parents should first attempt to reach an agreement by participating in mediation or Family Dispute Resolution (FDR). 

Neither parent can launch an application with the Court seeking Parenting Orders without participating in FDR and being issued a certificate known as a ‘Section 60I certificate’. There are exceptions to this requirement, such as family violence or child abuse. For the majority of parents though, they will need to undertake this pre-action procedure before commencing a court application seeking Parenting Orders.

If you have any questions about Consent Orders, Parenting Plans and Parenting Orders please feel free to phone us on 07 5574 1888 for a free consultation.