Many couples who separate are able to fairly quickly and painlessly reach agreement about many issues, such as parenting arrangements and property settlement. Some of those people never come anywhere near a lawyer’s office, whereas others will consult a lawyer for the primary purpose of making the agreement they have reached formal.
There are two main ways to formalise an agreement about parenting arrangements – either by entering into a parenting plan, or by having consent orders made. What is the difference?
The big difference is that a set of consent orders are made by a court, whereas a parenting plan is simply made between the parents privately. A court will only make the orders if the court takes the view that they are orders that are in the best interests of the children. The further test that a court applies before making a set of orders is that the orders must be enforceable.
For a set of orders to be enforceable, they must clearly provide what is to occur with the children and who is to do what. For example, an enforceable consent order might provide as follows:
“[The children] shall spend every second weekend with [parent A], with [parent A] to collect them from school at the end of the school day on the Friday and return them to school at the start of the school day on Monday.”
That consent order makes clear where the children will be on the spending time weekend, how they are to get to the spending time parent and when they will be collected and returned.
While most well drafted parenting plans might say much the same thing if that is what the parents have agreed to, they don’t have to. A clause in a parenting plan that simply says:
“[The children] will spend each alternate weekend with their [parent]”
is perfectly acceptable and there are many parents who don’t need to have an order that says any more than that to cover parenting arrangements that run smoothly for years.
So, parenting plans are often less formal than consent orders. On the other hand, parenting plans can include provisions that can’t be included in consent orders. Section 63CAA of the Family Law Act makes clear that a parenting plan can include provisions about child support – the one agreement can be both a parenting plan and a child support agreement under the Child Support (Assessment) Act. Consent orders cannot include valid provisions about child support.
Parenting plans, other than registered parenting plans, can be varied or revoked by an agreement in writing between the parties to the plan. Registered parenting plans can’t be varied – they can only be revoked. A registered parenting plan can be revoked, either by an agreement in writing between the parties, or by a court. The court in which the parenting plan was registered can set it aside if it finds that the concurrence of one of the parties to the plan was obtained by fraud, duress or undue influence, or that the parties want the plan set aside, or that it is in the best interest of the children the subject of the plan to set it aside.
As already mentioned, consent orders may be enforced, but parenting plans may not. What that means is that there are no procedures available under the Family Law Act to take action if it is alleged that one of the parties to a parenting plan has breached a provision, whereas there is a simple process to take if it is alleged that a party has breached a consent order. If a consent order has been breached, the other party can file a Contravention Application and the process of having that application heard is fairly straightforward.
If a party to a parenting plan believes that it has been breached, then the response to that is quite limited. Beyond writing to the other side to complain about the breach and suggest some remedy, the only other response is to consider an application to court to revoke the parenting plan. The application to revoke would be based on the argument that the breaching party must no longer wish to be bound by the parenting plan, or perhaps an argument that the parenting plan is no longer in the children’s interests. Of course, if the court doesn’t agree with that argument, the non-breaching party can find themselves stuck with a parenting plan that the other side knows they are free to breach when they feel that it no longer suits them.
The advantage of a parenting plan is that the plan can allow for flexibility in the parenting arrangements in a way that consent orders can’t. Parenting plans can include alternate care provisions if one of the parents is unable to care for the children for a certain period of time, or they can provide for block holiday time provided that the spending time parent has leave from work. While these provisions are unenforceable, they can work well between two parents who are committed to making the parenting arrangements work.
Many parents don’t wish their parenting arrangements to be subject to the oversight of the court. For those parents, entering into a parenting plan can create a valuable record of how they intend to share the care of their children, and is sufficient to be the formal basis for their parenting arrangements for the balance of their children’s childhood. For other parents, enforceability of their parenting arrangements is the paramount consideration. For those parents, having a set of consent orders to govern their parenting arrangements is the answer.
Written by
Stephen Rugendyke
Special Counsel
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