It’s always a good idea for separated parents to write down any agreement they make about care arrangements for their children. This will not only help everyone to adjust to the change, but cooperative parents can also help avoid future disagreements as well as lengthy and costly Court battles.
The issue we see regularly is parents not knowing what type of agreement they should make and what the agreement should cover. Should they make a Parenting Plan or enter into Consent Orders? Or do they need to go to Court?
The purpose of this post is to inform you about the different types of parenting agreements.
What is a Parenting Plan?
A Parenting Plan is an informal written agreement that is dated and signed by both parents.
Parenting Plan’s generally cover the following:
– who the child lives with;
– who the child spends time with;
– allocation of parental responsibility;
– arrangements for special days such as birthdays, Christmas and school holidays; and
– procedures for making long-term decisions for the child, such as education or health.
In our experience, a Parenting Plan is usually only ever appropriate in limited cases. Why? Although Parenting Plans are flexible and ideal for parents who get along well, the downside is that they are not legally binding. This means that a parent can change the agreement at any time without consequence or can simply choose to stop following the agreement altogether.
However, it’s important to note that if a Parenting Plan is made and the matter does go before the Court later down the track, the Court will consider the terms of the Parenting Plan when considering what orders to make.
What is a Parenting Order?
A Parenting Order is a set of orders made by a Court about care arrangements for a child. Such orders are usually between the child’s parents but in some circumstances, grandparents and other relatives can also seek parenting Orders.
A Court can make a Parenting Order based on either:
– an agreement between the parties (Consent Orders); or
– after a Court hearing or trial.
When a Parenting Order is made, it will be binding and enforceable on each party to the agreement. If a party does not follow the Parenting Order, they can be disciplined by the Court. The type of discipline will depend on the breach, but it can include things like:
– a variation to the order;
– a fine; and
– imprisonment in serious cases.
When making a Parenting Order, the Family Law Act requires the Court to regard the best interests of the child as the most important consideration. So, when parents are working out the terms of a Parenting Order they should consult with their legal advisors as to what the Court will consider to be in “the best interests of the child”.
What are Consent Orders?
As indicated above, when you and your former partner agree about care arrangements for your children, you can apply to the Court for a Parenting Order to be made by agreement. These are called Consent Orders. Consent Orders have the same force and effect as if you had gone to Court and had a Judge make the decision after a hearing.
Consent Orders are the most common way that separated parents document the care arrangements for their children.
If you breach a Consent Order you are breaking the law and penalties may apply, as outlined above.
What if we can’t reach an agreement about parenting?
Many separated parents can sit down together and work out a plan, but there are many who have a hard time agreeing on a plan and need help. Parents are not expected to know all the solutions.
We recommend as a first step that parents each meet with a lawyer to receive independent legal advice about their options. In most cases, parents will go to Family Dispute Resolution Mediation to genuinely attempt to resolve the matter by agreement.
As a last resort, Court proceedings may be instituted. Parents must attend Mediation before going to Court unless there are exceptional circumstances, which include urgency, abuse or risk of abuse to a child, or where there has been family violence.
We recommend that separated parents receive independent legal advice, so they can work out what type of agreement will suit them. It may be that a Parenting Plan suits the particular circumstances. Alternatively, it may be in everyone’s interests (and most importantly the children’s) to formalise the agreement in a Parenting Order. A Parenting Order is legally binding on each parent and will help prevent disagreement and conflict in the future.
Would you like further information?
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.