Parenting Plans and Consent Orders – What’s the Difference?
No matter how amicable your separation may be, it is always difficult for families to escape the emotional turmoil that accompanies divorce. It’s particularly tough for children to adjust to two houses, shared care, and all the other minor and major changes brought about by divorcing parents. Generally speaking, most parents desire to create as harmonious a situation as possible for their children. But, when you’re suffering your own grief and period of adjustment, it can be overwhelming to navigate the legal system – especially when it’s your first experience and you have no idea what you’re supposed to do.
Parenting Plans and Consent Orders are the two options for documentation of agreed care arrangements for children. The aim of both is to achieve the best possible outcome for children whose parents are going through separation and divorce.
What is a Parenting Plan?
Parenting Plans are informal, voluntary, and flexible written agreements that relate to the ongoing care and welfare of your children, including:
– Where the children live
– The amount of time they spend with each parent
– What happens on special occasions such as birthdays, religious celebrations, school holidays etc
– How decisions are made regarding health, education and other long-term or day-to-day considerations.
As Parenting Plans are not legally binding or enforceable, they work best for parents who:
– Co-parent effectively
– Can communicate easily about their children
– Do not wish to enter the court system
– Would like to limit the amount of money spent on legal matters.
Your plan will create a structure that everyone understands and, if necessary, can be altered via written agreement by both parents.
How do they work?
Parenting Plans can be super simple, or quite detailed, depending on the needs of your family. Your agreement must be easy to understand and should never be signed if you are under any threat or coercion.
You will probably find that third parties such as the Child Support Agency, Centrelink, and your child’s school or day care, need to see the plan – so make sure it is as clear as possible to avoid any mix-ups or confusion.
Do I need a Family Lawyer?
While you don’t need a lawyer to create a Parenting Plan, it is always wise to seek legal advice. Counsellors from public organisations such as Relationships Australia, or private practice are available to help parents work through the nitty gritty and ensure that your children’s needs are the focus of the plan.
It’s important to note that if one parent doesn’t abide by the Parenting Plan, the other parent has no legal recourse, unless they take their ex-partner to court. Although the court will consider the previously agreed plan, any further Orders made by the court will be created in the best interests of the children.
What do I need to think about to create a Parenting Plan?
Your first step is to put yourself in your children’s shoes and think about how the living arrangements will affect them. For example, how will they:
– Get to school from each parent’s house?
– Maintain friendship groups and activities from both homes?
– Manage to pack and transport clothes, sports equipment, and anything else they may need between the two houses?
While it is ideal to create two homes containing everything your children need, (so as little as possible is ‘swapped’ between houses), it is difficult to do, can take time to set up, and may cause financial strain for you and/or your ex. As a result, it is important to consider the age of your children and their weekly logistics when you create your plan.
You will also need to think about how the agreement will impact your lives as parents, and how you will manage:
– Your work / study
– Any financial implications
– School holiday care
– Childcare
When you have come up with your plan – ask yourself whether it is in your child’s best interests, and if it is workable for you and your children?
What is a Consent Order?
Consent Orders are Court-approved written agreements that clearly define the roles and expectations about care arrangements for children of separated or divorced parents. All Consent Orders carry legal ramifications – if you fail to follow a Consent Order, you are breaking the law and can be penalised for doing so.
Before approving a Consent Order, the court must be satisfied that the agreement is in the best interest of the children.
How do I apply for a Consent Order?
Just like a Parenting Plan, you and your ex-partner can work out the arrangements and agree to the details of care for your children post-separation. The difference is that you can then apply to the court for your Consent Order to be made. You will have to pay a fee to file an Application for Consent Orders with the court. This will then be assessed by a Registrar and, if they agree that it is in the best interests of the children, the agreement will become a Court Order.
If you are concerned that the other parent may not stick to the agreement you have devised, then a Consent Order may be the preferable option. As it is legally enforceable, it encourages both parties to follow through with the plan, and enables either parent to apply to the court should the agreement be broken. In such cases, the court may employ a range of penalties, from ensuring that a parent makes up any time they have missed with their children, to imprisonment for serious breaches.
How do I work out whether a Parenting Plan or Consent Order is best for my situation?
While it is always preferable for parents to come to an agreement themselves, only you can know and assess your family’s circumstances. It is much less stressful, and more cost-effective, to create a plan yourselves – but this is not always possible, particularly if trauma or abuse is involved.
The most significant difference is that a Parenting Plan is not legally enforceable, but a Consent Order is.
So, if you believe you can co-parent effectively and that both of you hold the best interests of your children at heart, a Parenting Plan may be your best option. But, if you are concerned that your ex-partner may not follow the plan by either withholding care from you, or not providing care for the children themselves, it may be better to apply for a Consent Order.
What if we can’t agree?
If your separation is complex, or you are unable to reach an agreement, it is crucial that you speak to a Family Lawyer to attempt to negotiate an agreed position with the other parent.
Should this not work, your case will probably end up in Court, where a judge will hear both sides and make a ruling about parenting arrangements. This is an expensive and stressful process that should be viewed as a last resort.
You don’t have to do this alone – speak to a Family Law Specialist
As newly separated or divorced parents, it is always a good idea to get independent legal advice. A Family Lawyer will help you fully understand your situation, explain the law and processes involved, and guide you to put the needs of your children at the forefront of any Parenting Plan or Consent Order.