Consent Orders or a parenting plan?

Why get Parenting Consent Orders over a parenting plan?

Based on the provided information, here’s why you would choose Parenting Consent Orders over a Parenting Plan:

• Legally Enforceable Agreement: This is the primary and most significant reason. Parenting plans are not legally enforceable. Consent orders, once approved by the Court, become legally enforceable. This means that if one parent doesn’t follow the agreement outlined in the consent order, the other parent can take legal action to enforce it.

• Deterrent for Disobeying the Agreement: Because consent orders are legally enforceable, they act as a deterrent. The potential for enforcement and penalties discourages either parent from disobeying the agreement.

• Procedure for Enforcement: If a parent does violate a parenting consent order, there is a clear procedure for enforcement and potential penalisation. This provides a legal recourse that doesn’t exist with a parenting plan.

• Carefully regarded in Family Law Matters: While parenting plans are still carefully regarded in family law matters they do not have the legal weight of a consent order.

While both Parenting Consent Orders and Parenting Plans are tools to formalise arrangements for children after separation in Australia, they have crucial differences, primarily concerning legal enforceability and certainty.

Here’s why many parents opt for Parenting Consent Orders over a Parenting Plan:

1. Legally Binding and Enforceable:
   
   • Consent Orders: Once a parenting agreement is approved by the Court and made into Consent Orders, it becomes a legally binding court order. This means if one parent breaches the orders (fails to follow them), the other parent can take steps to have the orders enforced by the Court. Breaching a court order can have serious consequences, including make-up time, orders for costs, or other penalties.
   • Parenting Plan: A Parenting Plan is a written agreement signed and dated by both parents. While it shows an agreed intention and the Court must consider its terms if a later dispute arises, it is not legally enforceable in the same way as a court order. If one parent stops following a Parenting Plan, the other parent cannot directly ask the Court to force compliance with the plan itself. They would typically need to apply to the Court for parenting orders (which might reflect the plan, but it’s a new process).

2. Greater Certainty and Security:

1. • Consent Orders: Provide a higher degree of certainty and security because the arrangements are formalised by the Court. Both parents know there are legal consequences for non-compliance. This can be particularly important if there’s a history of disagreement or a concern that one parent might not stick to an informal arrangement.
   • Parenting Plan: Offers more flexibility as it can be changed much more easily if both parents agree in writing to the changes. However, this flexibility can also be a downside if one parent frequently seeks changes or if there’s instability.

1.  3. Process for Making Changes:
   
   • Consent Orders: To change Consent Orders, you generally need to either:
     
     • Both agree to new arrangements and apply for new Consent Orders to vary the existing ones.
     • If there’s no agreement, apply to the Court to vary or set aside the orders. This usually requires demonstrating a significant change in circumstances since the original orders were made and proving that the new proposed orders are in the best interests of the child. This makes them more stable and less prone to arbitrary changes by one party.
   • Parenting Plan: Can be changed at any time as long as both parents agree in writing and sign a new plan. While this is simpler, it lacks the formal oversight and legal protection of court orders. It’s important to note that if a Parenting Plan is made after court orders are in place, it generally doesn’t automatically override the court orders unless specific steps are taken (like having the new plan made into new consent orders or if it meets specific legislative requirements to vary an order, which can be complex)
   • 3. Clarity on Contravention (Breach):
     
     • Consent Orders: The pathway for addressing a breach is clearer. The Court has established procedures for dealing with contraventions of its orders.
     • Parenting Plan: If a Parenting Plan is breached, the recourse is less direct. You might use the plan as evidence of agreed intentions if you later apply for court orders, but you can’t enforce the plan itself.

When might a Parenting Plan be suitable?

• When parents have a very amicable and cooperative relationship and trust each other to stick to the arrangements.
• As an interim measure while negotiating terms for Consent Orders.
• When parents want maximum flexibility and are confident they can manage changes by mutual agreement.

Why choose Parenting Consent Orders?

• You want the security of a legally binding and enforceable agreement.
• There are concerns about future compliance or stability of arrangements.
• You want greater certainty and clear consequences for breaches.
• You want to ensure that any future changes require a formal process, often involving demonstrating a significant change in circumstances.