When navigating the challenges of co-parenting , establishing clear guidelines and arrangements for the care of children is paramount. It provides both parents and children with consistency and stability. In Australia, the Family Law system encourages co-parents to discuss and reach agreement regarding aspects of the care, welfare and development of their child/ren, prior to issuing court proceedings.
Once you and your co-parent have reached an agreement, there are two ways you can document your parenting arrangement. In this article, family lawyers explain what these are, and provide the pros and cons of both.
What is a Parenting Plan?
A Parenting Plan is a written agreement, signed and dated by both parents, that deals with aspects of their child/ren’s care, welfare and development.
It’s important to know that Parenting Plans are not legally enforceable. This means that if one parent doesn’t comply with the terms of the Parenting Plan, the other parent can’t force them to, or seek legal remedies such as makeup time. Parenting Plans can be terminated, amended or varied at any time so long as both parents agree.
Parenting Plans and the Family Court of Australia
If parents end up in court, the Federal Circuit and Family Court of Australia (FCFCOA) can consider the terms of a Parenting Plan when making parenting orders, if it’s in the children’s best interest to do so.
The FCFCOA can also consider the extent to which both parents have complied with their obligations in relation to the child/ren, which may include a parent’s compliance (or non-compliance) with a Parenting Plan.
A Parenting Plan Can Deal with the Following Subject Matter:
- Who the child/ren is to live with
- The time the child/ren is to spend with the other parent and/or family members (e.g. grandparents, aunts, uncles etc.)
- The communication a child/ren is to have with their parents or other family members when they aren’t in their care (e.g. phone calls, Facetime, letters, emails)
- The process to be used by the parents for resolving disputes about the terms or operation of the Parenting Plan.
- Making changes to the parenting plan to consider the changing needs or circumstances of children or parents (e.g. attending family dispute resolution or private mediation)
- Maintenance of a child (e.g. child support) IMPORTANT NOTE: such terms cannot be enforced by Centrelink or the Child Support Agency unless it complies with the stringent requirements of a child support agreement. This involves, amongst other things, each parent obtaining independent legal advice.
- The allocation of parental responsibility for a child/ren. (If parents are to share parental responsibility how they are going to consult with each other about decision to be made in the exercise of that responsibility.)
- Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
What Are Consent Orders?
If you require your parenting arrangements to be enforceable, you can ask the FCFCOA to make parenting orders by consent. This can be in the same terms as a Parenting Plan that may already be in place.
Although made by consent, Consent Orders are orders of the Court and unlike Parenting Plans, are legally binding and enforceable. This means that each parent must comply with the Consent Orders and there can be serious consequences for breaching the orders.
Consent Orders are in force until the child/ren turn 18 years old and changing or varying parenting orders is more difficult than a Parenting Plan. The FCFCOA will only change or vary Consent Orders where there has been a significant change in circumstances and varying or changing the orders is in the child/ren’s best interest.
Pros & Cons of Parenting Plans and Consent Orders
Parenting Plan | Consent Orders | |
Nature & Origin | Parenting Plans are typically a collaborative agreement reached between the parents outside of court. It outlines various aspects of co-parenting, including custody arrangements, visitation schedules, decision-making authority, and communication protocols. | Consent Orders are legally binding directives issued by the FCFCOA. It may be based on a parenting plan agreed upon by the parents or determined by the court after considering the circumstances of the case and the best interests of the child. |
Flexibility & Legal Authority | Parenting Plans often offer flexibility and can be tailored to suit the unique needs and preferences of the family. Since they are created by the parents, there is room for negotiation and compromise. | Consent Orders carry the weight of legal authority and are enforceable by law. They provide a more rigid framework for co-parenting and may include specific directives that both parents are obligated to follow. |
Enforcement & Modification | Parenting Plans are not legally binding nor enforceable. However, parents can voluntarily amend, terminate or vary a Parenting Plans as needed, provided both parties agree. | Consent Orders are legally binding from the moment they are made. Failure to comply with a court order can result in legal consequences. Modification of court orders requires a formal application to the FCFCOA, demonstrating a significant change in circumstances and that the change is the best interests of the child. |
Involvement of the FCFCOA | Parents can create Parenting Plans independently or with the assistance of mediators or lawyers. | Consent Orders are issued by the FCFCOA following an application to the court which can be done with or without assistance from a lawyer. The FCFCOA plays a central role in determining the terms of the order and ensuring compliance. |
Cost & Time | Creating a Parenting Plans outside of court can be more cost-effective and less time-consuming. It allows parents to maintain greater control over the outcome and fosters a cooperative co-parenting relationship. | Obtaining a Consent Orders typically involves legal fees and may require court appearances, leading to higher costs and longer processing times. |
Talk to a Lawyer or Financial Advisor About Your Family Goals and Needs
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