A parenting plan is a written agreement between parents. It is not legally enforceable.
Consent orders are orders made by a court on what the parents have agreed. They are legally binding.
Both record the same kind of arrangements. The difference is whether the court can enforce them.
What a parenting plan is
A parenting plan is a written agreement about the care of your children.
It must be in writing, signed and dated by both parents.
It must be made free from any threat, duress or coercion.
There is no set form. Others, such as grandparents, can be included.
You do not need to go to court to make one.
A plan can be made with the help of a family dispute resolution practitioner.
What consent orders are
Consent orders are parenting orders that a court makes because both parties agree to them.
They are usually made without a hearing.
To apply, you file an Application for Consent Orders with a signed copy of the proposed orders. For parenting orders, you also file a notice about child abuse, family violence or risk.
The court checks that the orders are in the best interests of the child before it makes them.
You do not need a family dispute resolution certificate to apply for consent orders.
A court filing fee applies.
The key differences
- Enforcement. A parenting plan cannot be enforced by the court. Consent orders can.
- Court involvement. A plan is made by the parents alone. Consent orders are made by the court.
- Consequences of a breach. Breaching a court order can lead to serious consequences, including a fine or, in extreme cases, imprisonment. A plan has no penalty for breach.
- Changing them. Parents can change a plan by agreement at any time. Final parenting orders can only be changed in limited circumstances.
- Effect on each other. Unless the court order says otherwise, a later parenting plan can change the arrangements in an existing parenting order.
How the law changed on 6 May 2024
Changes to the Family Law Act 1975 about parenting started on 6 May 2024.
- The presumption of equal shared parental responsibility was removed.
- The law has never required children to spend equal time with each parent. There is still no 50:50 rule.
- The court now considers a shorter list of factors when deciding a child's best interests.
- The factors include the safety of the child and the people who care for the child, the child's views, the child's needs, each carer's ability to meet those needs, and the benefit of the child's relationships with parents and other significant people.
- For Aboriginal and Torres Strait Islander children, the child's right to enjoy their culture must also be considered.
The changes generally apply to cases started before 6 May 2024, unless the final hearing had already begun.
Which one suits you
A parenting plan may suit parents who get on well, want flexibility and expect to change the arrangements as the children grow.
Consent orders may suit parents who want certainty, or where there is a risk that one parent will not keep to the agreement.
Some parents start with a plan and apply for consent orders later.
Where there is family violence or a safety concern, get legal advice before you agree to anything.
If you or anyone in your family is at risk of harm, call 000.
Where people get caught
Treating a plan as binding
If the other parent stops following the plan, the court cannot enforce it.
Forgetting a later plan can override an order.
Signing a new plan can change the arrangements in an existing order, unless the order says it can only be changed by the court.
Putting property terms in a parenting plan.
A plan does not make terms about property or spousal maintenance enforceable.
Filing vague consent orders.
Orders should state clearly what each parent must do. Unclear orders are hard to follow and hard to enforce.
Assuming equal time is automatic.
There is no rule that children must spend equal time with each parent. Arrangements must be in the child's best interests.
Common questions
Q: Can a parenting plan be turned into consent orders?
A: Yes. Parents can ask the court to make orders in the terms of their agreement. Once made, those orders are binding.
Q: Do we need to go to court for consent orders?
A: Usually not. The application is filed and a Registrar decides it. You only attend if the Registrar asks.
Q: Does a court look at a parenting plan if we later disagree?
A: A plan is not enforceable, but it can be relevant evidence if the matter later goes to court.
Speak to a solicitor before you sign a plan or file orders. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.