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01
MAY
2014

Parenting Plans or Consent Orders – which option should I choose?

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In the event that you and the other parent of your children reach an agreement about parenting your children after separation, you may wish to consider entering into a Parenting Plan or Consent Orders.
Many parents reach agreement regarding the parenting of their children without requiring written documentation. For some parents it is appropriate and beneficial to have their agreement put down in writing. There are two types of legal documents under the Family Law Act 1975 which can set out a parent’s rights and obligations when it comes to parenting their children. Those documents are Parenting Plans and Consent Orders.

Parenting Plan
A legally recognised Parenting Plan is an agreement that:

 

  • Is in writing
  • Is made between the parents of a child
  • Is dated
  • Is signed; and
  • Deals with parenting matters such as the time children spend with each parent (including holidays and special occasions); how parental responsibility is allocated; how major decisions will be made regarding children; how parents will communicate with children and any other matters which the parents may wish to include.

An advantage of a Parenting Plan is that it does not have to comply with the strict requirements necessary for legally enforceable Orders. Drafting appropriate Court orders usually requires the skill of an experienced lawyer who specialises in Family Law. An Order will not be enforceable unless it is properly drafted and meets certain requirements. However, a Parenting Plan does not have to be so precise in its wording. It is not necessary to have the Court approve the Parenting Plan. A Parenting Plan can also deal with matters which might otherwise be outside of the scope of a Court order. If parents have worked together on the terms of a Parenting Plan and are satisfied with the contents, they may be more likely to stick to the agreement and commitments they have made.
A disadvantage of a Parenting Plan is that it is not a legally enforceable document. If one party does not fulfil their obligations the Court cannot enforce the document in the way that it could if it was in the form of Court orders. The Court cannot penalise a party for failure to comply with a Parenting Plan. However, it is not true to say that a Parenting Plan does not have value or that Consent Orders are necessarily the better option. For many parents, having a written agreement they have willingly entered into is sufficient reason for them to honour their commitments. Further, if a party does not comply with their obligations under a Parenting Plan, the Court can consider the terms of a Parenting Plan when determining appropriate Court orders. The party who refuses to comply with a Parenting Plan may have to justify their position to a Judge if the matter does go to Court.
We recommend Parenting Plans to parents who would like to have a written document containing the terms of their agreement, but who do not require the force of Court orders.

Consent Orders
Consent Orders are a set of written Orders which parents have agreed to enter into and which are approved by a Court. Consent Orders are drafted in legal terms and they are signed by the parties. It is not necessary for the parties to attend Court to have Consent Orders made; the documents can be prepared and sent to the Court for Orders to be made in the absence of the parties. Once Consent Orders are made by the Court they are just as binding and enforceable as other Orders made by judicial determination. The Court can impose penalties if parties refuse to follow the Orders. For some parties it is necessary to have the force of Court orders. There may be a history of behaviour by one or both parents of failure to comply with agreements that have been made. The parties may feel that without the certainty of Court orders they have no confidence that the other party will comply. Sometimes Consent Orders are necessary to give a parent a right they may not otherwise have, for example, one party may require sole parental responsibility to enrol a child in schooling or to obtain a passport.
We recommend Consent Orders where parents require the certainty and enforceability of Court orders, or where it is necessary to obtain a right for one party which can only be obtained by Court Order.
At Sharon Payne Family Lawyers we have expertise in drafting Parenting Plans and Consent Orders. We can advise you as to the most appropriate document for your situation and we can ensure that the documents are properly drafted and the requirements of the Family Law Act are met.

 

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