Parenting Plans vs Consent Orders: What’s the difference?
What is a parenting plan?
A Parenting Plan is a written agreement which covers parenting arrangements for children but is not formally approved by the Court. It is a more informal way of having arrangements in place for your children than Consent Orders, as the parties do not have to make a formal application to the Court.
As long as the Parenting Plan clearly sets out the rights and obligations of each parent (or any other person) and is signed and dated by each parent or any other person involved, it is deemed sufficient.
However, if either party acts contrary to a Parenting Plan, then unlike Consent Orders, the other party is not entitled to make an application to the Court for a breach. The terms of Parenting Plans are not enforceable.
What is a consent order?
A Consent Order is a written agreement that is approved by the Family Court through an application made to the Court, which can cover parenting arrangements for children (as well as arrangements with respect to property settlement and spousal maintenance).
Consent Orders made through the Court by lodging an Application for Consent Orders have the same legal effect as if they had been made by a Magistrate or Judge after a Court hearing. In having such Consent Orders approved, the Court must be satisfied that the orders sought are in the best interests of the child.
If either parent (or any other person included as a party to the Consent Orders, such as grandparents) does not comply with the terms of a Consent Order, the other party is entitled to make a Contravention Application with respect to the breach, and the defaulting party may be sanctioned by the Court.
For more information on Consent Orders, please see our page Consent Orders: Everything You Need to Know.
Key Differences between Parenting Plans and Consent Orders
The key differences between Consent Orders and a Parenting Plan can be summarised as follows:
Does it need to be approved by the Court?
Parenting Plan – No.
Consent Order – Yes.
Are there any fees involved?
Parenting Plan – No, unless a mediator/lawyer is drafting the Parenting Plan.
Consent Order – Yes, a $165 fee is payable to the Family Court unless you’re eligible for a fee exemption or legal fees, if Consent Orders obtained through Court proceedings.
Is it legally enforceable?
Parenting Plan – No, unless there is an existing Parenting Order made by the Court,
in which case any subsequent Parenting Plan can vary or supersede previous Orders)
Consent Order – Yes.
Can a Consent Order be changed once obtained?
If there is already a Consent Order in place in relation to parenting arrangements and a few years down the track the parties’ circumstances change, resulting in the Consent Orders becoming ‘unworkable’ or ‘unrealistic’, where to next?
Option 1: Make an application to vary the existing Consent Order or enter into entirely new Consent Orders
Varying a consent order is possible if the parties are able to negotiate and reach an agreement to vary the existing Consent Orders so that they are workable and suited to the change in circumstances.
An Application for Consent Orders can be lodged at the Court to have the existing Orders varied, or to have “new” Consent Orders approved by the Court.
Option 2: Enter into a subsequent Parenting Plan
As an alternative to making Application for Consent Orders (Option 1, above), it is possible to have a new agreement written in a Parenting Plan.
Pursuant to Section 64D of the Family Law Act 1975 (Cth), any subsequent Parenting Plan entered by the parties supersedes existing Consent Orders (unless there is a provision in the Consent Orders stating that the Orders or a specific Order may only be varied by a further Order of the Court, not a Parenting Plan).
There are no set rules as to how parties should formalise any subsequent parenting agreement following the making of Consent Orders. Ultimately the decision will depend on the facts of each case, how effectively parties are able to communicate with one another and whether there are any issues that may surface in the foreseeable future (for example, concerning new partners, relocation, travel, and so on) which could affect the agreement.
It is, therefore, crucial to be aware of the distinction between Consent Orders and a Parenting Plan before any decisions are made. We strongly recommend that legal advice is obtained before signing any subsequent Parenting Plan, as it can have the effect of changing or superseding previous Orders.
To find out more about Consent Orders or a Parenting Plan, or any other Family Law issue, call DS Family Law on (08) 9486 1766 for an initial consultation.
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