At a Glance
- Parenting Plans are informal, written agreements that are not legally binding or enforceable by a court.
- Consent Orders are formal agreements filed with the court that carry the same legal weight as an order made after a trial.
- The primary consideration for both documents must be the "best interests of the child."
- While Parenting Plans offer flexibility, Consent Orders provide certainty and a clear mechanism for dealing with breaches.
- A later Parenting Plan can actually override parts of an earlier Consent Order if not carefully managed.
The Informal Path: What is a Parenting Plan?
Under the Family Law Act 1975 (Cth), a Parenting Plan is a voluntary, written agreement between parents. It must be signed and dated by both parties to be valid. Because it is made outside of the court system, it is often seen as a less stressful way to document arrangements for where a child lives, who they spend time with, and how major long-term issues like education or health are decided.
However, the major drawback is that it is not legally binding. If one parent stops following the schedule, the other cannot simply go to the police or the court to have the plan "enforced." Instead, the breach of a Parenting Plan is merely used as evidence of the parties' intentions if the matter eventually goes to court.
The Formal Path: The Power of Consent Orders
A Consent Order is an agreement that has been reviewed and approved by the Federal Circuit and Family Court of Australia. Once the court seals the document, it becomes a final court order.
The main advantage is enforceability. If a parent breaches a Consent Order, the other parent can file a "Contravention Application." The court has the power to impose penalties, such as ordering make-up time, fines, or in extreme cases, imprisonment. This provides a level of security that many parents find necessary when trust has been eroded during a separation.
Practical Case Example: The Importance of Enforceability
In Goode & Goode, the Full Court of the Family Court of Australia emphasised that, in matters concerning parenting arrangements, legally binding court orders play a central role in safeguarding a child’s stability and reducing parental conflict. The Court drew a clear distinction between informal arrangements agreed between parents and parenting orders that are legally enforceable.
By way of illustration, where parents have only entered into a parenting plan providing that a child is to be returned by one parent on a Sunday, and one parent later refuses to comply, the other parent cannot rely on the parenting plan alone to obtain immediate enforcement by the court. In such circumstances, a parenting plan may operate only as background evidence of the parties’ intentions, rather than as a directly enforceable legal instrument.
By contrast, where the parties have entered into consent orders approved by the court, the arrangements attain the status of court orders. In the event of non-compliance, a party may seek a Recovery Order or commence contravention proceedings. As reflected in the principles articulated in Goode & Goode, the certainty and enforceability inherent in court orders are themselves critical mechanisms for protecting a child’s best interests and maintaining stability in the child’s life.
Can a Parenting Plan Override a Consent Order?
This is a common trap for many parents. Under Section 64D of the Family Law Act, a Consent Order is deemed to include a provision that it can be varied by a subsequent Parenting Plan unless the order specifically states otherwise.
This means if you have a formal Consent Order but later sign an informal Parenting Plan that changes the weekend schedule, the new plan may effectively "trump" the old court order. It is vital to seek legal advice before signing any new documents, even if they seem minor, to ensure you are not inadvertently signing away your legal protections.
A Lawyer’s Perspective: Flexibility vs. Certainty
In our experience, Parenting Plans work best for parents who maintain a high level of communication and trust. They allow for "organic" changes as children grow older and their needs evolve. For example, a plan made for a toddler will rarely suit a teenager, and a Parenting Plan can be updated easily without court fees.
However, where there is a history of conflict, family violence, or one party being unreliable, a Consent Order is almost always the superior choice. It moves the agreement from the realm of "goodwill" to the realm of "legal obligation." The peace of mind that comes with knowing the law protects your time with your children is often worth the extra steps involved in the application process.
Key Takeaways
- Parenting Plans are flexible but cannot be enforced by the court.
- Consent Orders are legally binding and provide a clear path for dealing with breaches.
- Both documents must focus on the best interests of the child rather than the rights of the parents.
- A subsequent Parenting Plan can override a Consent Order, so caution is required when signing new agreements.
- Legal advice is critical to ensure the document accurately reflects your intentions and protects your rights.
Frequently Asked Questions
Do I have to go to court to get a Consent Order?
No. You do not usually need to appear in front of a judge. You file the application and the draft orders electronically, and a Registrar reviews them in your absence.
How long does a Consent Order last?
Generally, parenting orders stay in effect until the child turns 18, marries, or enters a de facto relationship, unless the orders are varied by a later agreement or court order.
What if we can't agree on anything?
If mediation fails and no agreement can be reached for a plan or order, you may need to apply for "Initiating Orders," where a Judge will eventually make the decision for you after a trial.
Can I change a Consent Order if my circumstances change?
Yes, but if the other parent doesn't agree, you must prove there has been a "significant change in circumstances" (the rule in Rice & Asplund) before the court will reconsider the matter.
Is a Parenting Plan better for very young children?
Not necessarily. While they allow for frequent changes as the baby grows, the lack of security can cause high stress for the primary carer. Many parents use "stepped" Consent Orders that automatically change the schedule as the child hits certain age milestones.
How We Can Help
We provide comprehensive support for parents navigating the Australian family law system, including:
- Drafting precise Consent Orders that meet court requirements;
- Negotiating and formalising Parenting Plans for cooperative separations;
- Advising on the risks of overriding existing orders with new informal agreements;
- Representing clients in contravention proceedings when orders are breached;
- Providing strategic advice on "best interests of the child" arguments.
Our goal is to resolve parenting disputes with minimal conflict while ensuring your parental rights and your children’s future are legally protected.
