There are a couple of options available to parents looking to formalise their care arrangements for children after separation.
Those options are entering into a Parenting Plan or alternatively, Consent Orders. There are benefits and disadvantages of both types of agreements, which will impact parents differently depending on their circumstances.
What is a parenting plan?
A parenting plan is a written and signed voluntary agreement between parents. A parenting plan under the Family Law Act 1975 will deal with matters relating to aspects of the care, welfare and development of a child, including but not limited to:
Who the child will live with
Time spent with each parent or other persons
How parents are to consult on major long-term issues relating to the child
Maintenance of a child
The practical considerations of a child’s day-to-day life.
Parenting plans are flexible as they can be changed at any time upon written agreement by both parents.
To be recognised as a parenting plan under the Family Law Act 1975, the parenting plan must be between two parents however, it can also include other persons such as grandparents or step-parents.
Are parenting plans legally binding?
The limitation of parenting plans is that they are not legally binding. If one party does not uphold their side of the agreement, there is no immediate legal recourse for that parties’ non-compliance.
If court proceedings are later initiated, the court must consider the terms of a parenting plan. They are however, not bound by the terms and it is open to the court to make Orders in accordance with the best interests of the child.
Parenting plans may be preferable to those seeking to spend the least amount of money and avoid entering the court system, while still maintaining control over their parenting arrangement.
Should I enter into a parenting plan?
Separated parents may consider entering into a parenting plan where:
They can freely communicate about issues pertaining to the child
They are wanting structure in their co-parenting arrangement.
What is a Consent Order?
An alternate option to formalising your parenting arrangement is to enter into Consent Orders.
A Consent Order is made by the Federal Circuit and Family Court of Australia in terms agreed to by all parties.
When parties are able to reach an agreement, they can file an Application for Consent Orders with the Federal Circuit and Family Court of Australia. The proposed orders will be considered by a Registrar and if deemed to be in the best interests of the child, will become legally binding Court Orders.
Court Orders are legally enforceable. If a court finds a parent has contravened an Order without reasonable excuse, there are certain penalties that may be applied. These penalties range from making Orders to compensate time lost with a child to imposing a prison sentence in the most severe of breaches.
Consent Orders may be preferable where there is a possibility that a party may stray from the agreement. Orders made by consent both serve as a deterrent for disobeying the agreement as well as providing a procedure for enforcement or penalisation if it is contravened.
Applying for Consent Orders
To apply for Consent Orders, you must complete and file three documents with the Federal Circuit and Family Court of Australia. Those documents are:
Proposed Consent Orders;
Application for Consent Orders;
Notice of Child Abuse, Family Violence or Risk.
There may be other documents you are required to file depending on your circumstances.
Note: A filing fee of $170 applies when filing an Application for Consent Orders with the court.
Family Law Consent Orders example
An example of a typical parenting Consent Order is as follows:
That the mother and father have equal shared parental responsibility for the child JANE SMITH, born 8 October 2015 (“the child”).
Get expert advice
It always depends on individual parents and their personal circumstances as to which option is the better option for them.
It is always preferable that parents attempt to come to an agreement between themselves where possible. If this is successful, parents should consider whether there is a need to have the agreement made enforceable by the court.
If you wish to seek further advice on drafting a parenting plan or applying for Consent Orders, please don’t hesitate to contact our Family Law team.