After separation or divorce, it is important that your child or children are cared for and supported.
If the parents reach an agreement, that agreement can be formalised by:
- Parenting Plan; or
- Consent Orders.
While it not a requirement it is important that each party has received independent legal advice from an experience child custody lawyer before signing any documents in relation to parenting matters.
If an agreement can be reached, you may enter into a Parenting Plan. This document is any written, signed and dated agreement made between parents. This can be made before either party obtains legal representation.
Some of the issues that a Parenting Plan may cover are:
- who has parental responsibility?
- who the child will live with and who they will spend time with?
- details of what communication the child will have with both parents when in the other parent’s care.
- what processes are in place to resolve any future disputes about the child.
- what processes are in place to change the plan in the future if circumstances change.
- any other aspect of the care, welfare and development of the child.
A Parenting Plan is not legally binding or enforceable, but it does allow you and the other parent to be flexible if circumstances change.
The Court will consider the terms of the Parenting Plan if proceedings are commenced, but they will ultimately make a decision based on the best interests of the child.
The risk of entering into a Parenting Plan is that you will not be able to bring contravention proceedings if one party does not comply with the terms of the agreement.
Unless you and your former spouse or de facto partner are amicable and have a strong basis of trust, then we recommend you enter into Consent Orders over a Parenting Plan.
If you and your former spouse or de facto partner want to make your agreement about parenting matters legally binding, we recommend you enter into Consent Orders.
To get Consent Orders, you and your former spouse or de facto partner do not need to attend Court.
You will, however, need to file the following documents with the Family Court of Australia:
- Minute of Orders, signed by both parties to the agreement; and
- Application for Consent Orders.
Once filed, the Registrar of the Family Court of Australia will review the terms of the Orders. If they are considered appropriate and in the best interests of the child, the Court will seal them and the Orders will become final. Once final, the Orders are legally binding and enforceable.
Once final Parenting Orders have been made, the only way to amend or vary the Orders is if the Court is convinced there has been a significant change in circumstances that warrant revisiting the Orders previously made.
The benefit of entering into Consent Orders is their enforceability – a contravention application can be made if either of you do not comply with the Orders.
The risk of entering into Consent Orders is that if any amendments are required in the future, you’ll need to satisfy the Court that there has been a significant change in circumstances that require the Orders to be changed. This can be difficult and costly.