Parenting Plan or Consent Order?
When families come to mediation, it’s usually because there’s issues they haven’t been able to agree on and they need support to end the arguing and make things different. But what should they DO with those agreements? Is a parenting plan enough to protect them? Is it the right time for consent orders? How do you decide?
The first thing, is to find out what a parenting plan is and how it differs from a consent order.
Parenting Plan
A Parenting Plan is a written document of agreements regarding children. It can be agreements reached at mediation or it can be agreements you reached at the coffee shop or by email. The important part is that you and your child’s other parent have signed it and those signatures are witnessed, and it is dated.
However, a Parenting Plan is NOT a legally enforceable agreement. So why would you want one?
Pro’s
It’s not a legally enforceable document. This is a benefit if your separation is new and you need to test the agreement before making it water tight. If you think you’ll need a Consent Order in the future, test the Parenting Plan out for a little while to make sure it’s definitely going to work before formalising it. When separations are new, there’s often angst and high emotion. It’s okay to put some time and space between the date of separation and locking in agreements that might need to last 18 years or more!
It’s easy to change a Parenting Plan. If there’s something that doesn’t work, you just write up a new plan and sign it.
A Parenting Plan is effective when things are going well and there is no reason to believe it won’t continue. The important thing is that you spent time talking, discussing and coming to agreement. If there’s still trust between you, a Parenting Plan might be all you need.
Con’s
It’s not legally enforceable. If one parent packs up the kids and moves to the back of Burke, you cannot ask the Police to return the children nor can you go to Court and apply to have them returned. A Parenting Plan is a Gentleman’s Agreement. It is only valuable if both parties are sticking to it.
A Parenting Plan can only cover issues relating to children. While you can reach agreement about property or who is going to contribute financially and in what regard, because it is not legally enforceable, there is no value to including property or financial matters in a Parenting Plan.
Sometimes the time spent developing a Parenting Plan is not sufficient to fully cover all the issues. The disagreement may arise due to unclear communication or differing interpretations of the agreement between the parents. If this happens, there’s nowhere to turn. You can’t ask Lawyers to apply the law and you can’t ask a Judge to make a determination. It’s just you and your piece of signed paper.
Consent Orders
An agreement formulated into a legal document is called a Consent Order, and individuals file it with either the Federal Circuit Court in Australia or the Family Court of Australia.
The content in a Consent Order may match that of a Parenting Plan, but once individuals file it with the Court, it becomes a legally enforceable document.
Pro’s
Consent Orders are legally enforceable and can deal with children, property and spousal maintenance.
Consent Orders can contain information that while not legally enforceable through the Order, may be sufficient to prove mutual intention for an application to the Child Support Agency.
Con’s
Consent Orders cannot deal with issues relating to Child Support in any way that is legally enforceable. However, if there is a notation in your Consent Orders that deals with issues covered by the Child Support Act, that may suffice to prove mutual intention for the purposes of a Child Support application.
Consent Orders are very difficult to change. There is a threshold test applicable to new applications in the Court once Consent Orders have been made. If your Orders are unsuitable and other parent refuses to change them, altering them can be costly, time-consuming, and challenging.
Consent Orders can be very expensive to formulate. There are other options available and if you’d like more information about how to create and file Consent Orders without breaking the bank, get in touch for the ‘inside scoop’.
Lots of families choose to formalise their agreements into an Order. Other families have plans they agree to, sign and have witnessed. Lots and lots of families have no written agreement at all.
What option you choose is totally up to you and your childrens other parent and what is best for your family.
* Please remember, this is information only. You should seek specialist advice from a Family Lawyer specific to your circumstances.
** To finalize property settlement, either lodge the agreement with the Court through a Consent Order or include it in your divorce application. The Family Law Act (1975) requires property settlements to be finalized within 12 months of divorce.
