Following separation, you and your ex partner can reach agreement in relation to the living arrangements of your children informally, by a Parenting Plan or formally by a Consent Order.
Whether you and your ex partner are amicable or not, it is in your interests to reduce any agreement to writing either by way of a Parenting Plan or a Consent Order as it provides certainty for both parties and reduces the likelihood of disputes arising with respect to the living arrangements of the children in the future.
Formalising the living arrangements for our children – Parenting plan vs Consent Orders
A Parenting Plan is a written agreement between you and your ex partner which sets out the future living arrangements for your children. A Parenting Plan is not required to be registered and is not enforceable by a Court. However, if Court proceedings are instituted at a later time, a recent Parenting Plan may be used as evidence in court of the intentions of the parties as to the living arrangements that are in your children’s best interests.
A Consent Order is an Order made by agreement which provides for the future living arrangements of your children that is made following an Application to the Court. A Consent Order will only be made by a court if it is considered to be in the children’s best interests. You do not have to go to Court to get a Consent Order.
The main difference between a Parenting Plan and a Consent Order is that a Parenting Plan is not legally enforceable whereas a Consent Order is enforceable i.e. there may be legal consequences if it is breached.
Therefore, in most circumstances, a Consent Order is the preferable option for a party wanting to ensure certainty and enforceability of the agreement with respect to the living arrangements of the children. As it is enforceable, if one party breaches it, there are remedies the other party can use to remedy the breach.
A Parenting Plan is most efficient where either of the parties have an amicable post separation relationship, it is unlikely that the agreement will need to be enforced (i.e. each party is likely to abide by it) or where circumstances of the parties and/or the children are changing or are likely to change in the near future and so it is likely that the living arrangements of the children documented in the Parenting Plan will need to be reviewed at a later stage.
However, even where parties are amicable post separation, circumstances can change in the future, especially if either parent re-partners or seeks to relocate. These factors can place strain on the relationship between the parents and cause parental conflict.
The primary advantage and disadvantage of a Consent Order is that it is not easily changeable. A consent order is in force permanently until the children are eighteen subject to an alternate agreement between the parties or a significant change in circumstances occurring, which is actioned by a party making an application to a court seeking a change to those orders.
If a Consent Order is in place and you wish to change it without the consent of the other party, you need to seek permission from the Court and you need to satisfy the Court that there has been a significant change in circumstances.
You should seek legal advice from our experienced family law experts as to what constitutes a significant change in circumstances and whether you would be entitled to apply to have a Court Order changed on this basis. You may also find our article useful entitled Can i change a Parenting Order?
What happens if we are unable to reach an agreement in relation to our children?
Family law Mediation with a dispute resolution practitioner is a compulsory step that you must take prior to making an application to the Court for parenting orders. Whilst there are certain exceptions where mediation may not be required, for example, circumstances of urgency and/or risk, in the large majority of cases, you must participate in mediation first. A list of exceptions when you can seek an exemption from participating in mediation prior to making an application to the Court can be found on the Family Law Courts website.
When you file your application to the Court, you must prove that you have participated in Mediation by attaching a copy of your dispute resolution certificate, known as a ‘section 60I’ certificate. You should be aware that a section 60I certificate is effective for twelve months only.
To find a dispute resolution practitioner in your local area contact us for a list of private mediators recommended by us. You can also engage in mediation with a dispute resolution practitioner at Relationships Australia. Relationships Australia is a free service. However, mediation through Relationships Australia may take up to three months to arrange, whereas if you elect to engage a private mediator, you can arrange a mediation within a couple of weeks.
What parenting orders can I apply for?
Parenting orders are a set of legally binding orders made by a Court about the living arrangements and future long term health, care and welfare of your child.
A parenting order may deal with one or more of the following:
- who the child/ren will live with
- how much time the child/ren will spend with each parent and with other people, such as grandparents
- the allocation of parental responsibility
- how the child/ren will communicate with a parent they do not live with, or other people, and
- any other aspect of the care, welfare or development of the child/ren.
How does a court determine the living arrangements for my children?
The paramount consideration of a Court in determining what parenting order it is to make, is the child’s best interests.
It is important to understand that in the eyes of the law, you as a parent do not have any rights with respect to you children, only responsibilities.
When considering what orders are in your children’s best interests, the primary considerations of the Court are:
- The children’s right to have a meaningful relationship with both of their parents;
- The right of the children to be protected from harm.
Where there is a conflict between these two fundamental rights of the child, the child’s right to be protected from harm is given greater weight by the Court.
There are additional considerations the Court is also required to consider in determining what orders are in the child’s best interests. These include:
- Views (or wishes) expressed by a child;
- The nature of the child’s relationship with both parents and other important persons;
- The extent the child’s parents have taken opportunities to spend time with/communicate with the child and participate in long term decisions regarding the child;
- The extent the child’s parents have fulfilled their obligation to maintain the child (child support);
- The likely effect of any change in circumstances on the child;
- The practical difficulty and expense of each parent spending time with the child;
- The capacity of the parents to provide for the needs of the child;
- The maturity, sex, lifestyle and background of the child and the child’s parents and any special characteristics of the child that are relevant;
- If the child is Aboriginal/Torres Strait islander;
- The attitude demonstrated by the parents to the child and responsibilities of parenthood;
- Any family violence involving the child or a member of the child’s family;
- Any family violence orders that apply;
- The order that would least likely lead to the institution of further court proceedings (if court proceedings are on foot);
- Any other fact or circumstance the court thinks is appropriate, including for example, the ability of the parents to facilitate and encourage the child’s relationship with the other parent.
A Court may make an Order for a child to spend equal time, or substantial and significant time, with both of the child’s parents.
Before making an Order for equal time or substantial and significant time, a Court must find that the arrangements are ‘reasonably practicable’. This is determined by:
- How far the parents live from each other;
- The parents’ current and future capacity to implement an arrangement for the child spending equal (substantial or significant) time with both parents;
- The parent’s capacity to communicate;
- The impact such an arrangement would have on the child.
There is no presumption that a child should spend equal time with each of the parents.
Want more information?
If you want more information on a specific area relevant to you, check our our family law articles:
- Fact Sheet – Children – A guide for separated parents
- How to spend more time with your children
- What is substantial and significant time
- Parental Alienation in Family Court Disputes – Part 1
- Parental Alienation in Family Court Disputes – Part 2
- What age can a child decide where they live?
- Am I a parent?
- I’m Not a parent. Can I apply for a parenting order?
- Can I go to court without doing mediation first?
- Can parenting orders be changed?
- Relocation of Children
- Prevention is better than cure – interim relocation cases?
- International travel with children after separation
- My ex is breaching a parenting order. What do I do?
You may also find the following family court information pages and fact sheets helpful:
- If you agree on parenting arrangements;
- If you do not agree on parenting arrangements;
- Compulsory Family dispute resolution – court procedures & requirements;
- Marriages, Families & separation;
- Parenting orders – obligations, consequences and who can help;
- Complying with orders about children;
- How do I apply for parenting orders?
Why use a lawyer?
As lawyers experienced in this process we can advise you in regard to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain the best possible result for your children. And if it comes to court, we are deeply familiar with the court system and can use our experience to your advantage.