Coke or Pepsi? Myer or David Jones? Consent Orders or a Parenting Plan?
These are some eternal questions that there may never be a “correct” answer to…
In this article I will explore the differences between Consent Orders and Parenting Plans and why one may be a better option than the other.
Consent Orders are formal Court Orders, made by agreement between the parties. In most cases they will be able to be made without either party having to attend Court. They may be made as the result of parties attending a mediation and reaching agreement, by parties coming to a private agreement between themselves or by lawyers negotiating an agreement on behalf of the parties.
Despite not actually attending Court to obtain them, Consent Orders are as enforceable as Orders made through Court proceedings. Consent Orders, as they are an Order of the Court, must be complied with, by each party, unless a significant risk of harm to a child or children would occur as a result of compliance. If they are breached the Federal Circuit Court and Family Court have powers to effect consequences. These consequences include fines, injunctions, bonds, and in very serious cases, imprisonment. If you are unable to comply with Consent Orders due to a possible risk of harm to a child, you should make an Application as soon as possible to the Court, seeking to vary the Orders.
Consent Orders can be filed with the Family Court or the Local Court. As Consent Orders are filed with the Court, a fee payable to the Court of $165 is incurred. Often parties will share this cost equally, and in some cases, the fee can be waived by the Court. If the Applicant has a grant of Legal Aid, or a Government Concession Card, the fee will be waived. Otherwise if the Applicant would qualify for the fee waiver due to their financial circumstances an Application for the Waiver can be made in writing to the Court.
A Parenting Plan is a written agreement made by the parties, which will be signed by each party but not filed with the Court. The Court has no power to penalise a party if a Parenting Plan is not followed, but parenting plans can be evidence considered by a Court in making a decision, if an Application for Parenting Orders was made by a party.
A Parenting Plan may result from agreement reached at mediation, or successful negotiations between lawyers, or an agreement reached between parties privately. A parenting plan does not attract any sort of filing fee payable to the Court.
So what are the Similarities and Differences?
Consent Orders and Parenting Plans have some things in common. Firstly, they are both written documents, signed by both parties. In addition, they address similar issues such as:
- How parties will make long-term decisions for the child or children
- Which party the child or children will live with and what time they will spend with the other party
- Arrangements for school holidays, special occasions and telephone or Facetime communication
- How the parties will effect changeover (providing the child or children to one party and then returning them to the other)
- What information each party can receive from schools and medical providers
- How travel will occur should a party wish to travel with the child or children
- Any specific Orders or Clauses which may be required to keep the child or children safe.
They differ, however, in the following ways:
- Consent Orders, as mentioned, are legally binding, and enforceable by the Court, whereas Parenting Plans are not
- Parenting Plans are more flexible in that they are able to be changed more easily
- Consent Orders require parties to provide some information to the Court, whereas Parenting Plans do not.
So which is Better?
Just like Coke versus Pepsi and David Jones versus Myer there is no “correct” answer. For instance, I dislike both Coke and Pepsi and equally like both David Jones and Myer. I am sure many people would have different views on these topics. Whether a Parenting Plan or Consent Orders is better depends significantly on your circumstances, the other party’s circumstances and what you both feel will work better.
As a general rule, in my practice, I find that parenting plans seem to work better when the child or children are younger (for instance three years of age or younger) and Consent Orders work better after this age. This is only the case however if the parties have relatively good communication and a relatively good co-parenting relationship. If the co-parenting relationship has broken down for whatever reason, it is generally advisable to choose Consent Orders over a Parenting Plan.