Parents wanting to formalise their care arrangements for children after separation can choose to either:
- enter into a Parenting Plan or
- apply for the Court to make Consent Orders.
Both types of agreement have benefits and disadvantages, 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 under the Family Law Act 1975 dealing with aspects of the care, welfare and development of a child, including:
- Who the child is to live with;
- Time the child will spend with each parent or other persons;
- practical considerations of a child’s day-to-day life;
- How parents will consult on major long-term parenting issues; and
- Child maintenance.
Parenting plans are flexible: they can be changed at any time by both parents by agreeing in writing.
A parenting plan under the Family Law Act 1975 must be between two parents, but it can also include other persons such as step-parents and grandparents.
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 the complying parent..
If court proceedings are later initiated, the court must consider the terms of a parenting plan but they are not bound by the terms. The court will make the Orders it considers to be in 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; and
- They want 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.
The Federal Circuit and Family Court of Australia (FCCOA) makes consent Orders in terms agreed to by all parties.
If parties are able to reach an agreement, they can file an Application for Consent Orders with the FCFCOA. If a Registrar considers the proposed orders to be in the child’s best interests, they will become legally binding Court Orders.
Court Orders are legally enforceable. If a court finds a parent has contravened an Order without reasonable excuse, it may impose penalties ranging from Orders to compensate time lost with a child to (in the most severe of breaches) imprisonment.
Consent Orders may be preferable where there is a possibility that a party may stray from the agreement. Consent Orders both deter parents from disobeying the agreement and provide a procedure for enforcement or penalisation if it is contravened.
How do I apply for Consent Orders?
To apply for Consent Orders, you must complete and file the following documents with the FCFCOA:
- Proposed Consent Orders;
- Application for Consent Orders;
- Notice of Child Abuse, Family Violence or Risk.
You may be required to file other documents depending on your circumstances.
A filing fee of $180 applies when filing an Application for Consent Orders.
Get expert advice
Which option is better for you depends on your personal circumstances. It is always preferable to try to reach agreement. If you do, you should consider whether the agreement should be formalised and, if so, whether you need it to be enforceable.
Contact us if you or someone you know needs advice or assistance to drafting a parenting plan or apply for Consent Orders.
