Blog post by Jeremy Gitsham
Separation brings with it the harsh reality that the existing family unit will forever change, resulting in heightened emotions, stress and uncertainty – exacerbated when children are involved.
As a consequence, some parents are unable to resolve issues around the future care of their children without resorting to litigation. This, however, is not always the case, and if parents are able resolve issues with respect to parenting, an agreement can be formalised by entering into either a Parenting Plan or filing an Application for Consent Orders in the Family Court of Australia.
A Parenting Plan is an agreement between the parties, drafted to reflect parenting arrangements. Less formal than Consent Orders, a Parenting Plan sets out the rights and obligations of parents and other parties involved in the care of the children pursuant to section 63C of the Family Law Act. Provided that it is signed and dated by each party it is usually deemed sufficient.
The Parenting Plan is largely reliant on the goodwill of each party to ensure its success, and if a party contravenes the terms of the Plan it is not legally binding or enforceable. If the agreement breaks down and issues are unable to be resolved with the matter ending up before the Court, the terms of the Parenting Plan can be considered, however, the Court is not bound to make Orders reflecting the Parenting Plan.
Consent Orders are generally made by the Family Court and reflect an agreement between the parties. The substantive element of the agreement, known as a Minute of Order, is drafted and filed in the Family Court with an Application for Consent Orders. An Application for Consent Orders can be filed in the Family Court of Australia for a current fee of $165.00 although this can change from time to time, with no need for either party to attend Court in most circumstances.
Provided the terms of the agreement are considered by the Court to be in the best interests of the child or children concerned, the Court will make orders based on the Minute of Order.
Importantly, Consent Orders are legally binding and have the same effect as if they had been made by a Judge during a Court hearing, therefore if a party to the Consent Orders contravenes them, the other party is able to make a Contravention Application to have the Orders enforced. The defaulting party may also face Court imposed sanctions as result of the contravention.
While it is possible for parties to complete an Application for Consent Orders and the accompanying Minute of Order on a ‘DIY’ basis, it is recommended that a qualified family lawyer assist in preparing the documents to ensure they are drafted correctly to minimise any ambiguity with respect to the future care arrangements of the child or children of the relationship.