Consent orders are legally enforceable and require careful consideration and drafting to be accepted by the Court. Consent orders are a set of orders agreed between the parties, accompanied by the Court form Application for Consent Orders, which are lodged at the Family Court. Generally, the parties do not need to attend Court, as a Registrar of the Court will consider the paperwork and make the orders if appropriate to do so. Those orders will then have the same force and effect as if made by a Judge following a lengthy hearing.
For consent orders, drafting must be precise and forward-looking as serious penalties can be imposed for breach of Orders. Orders can only be changed by agreement, or by the Court if there has been a sufficiently significant change of circumstances to warrant a Court reconsidering the orders.
Consent orders can also include others such as grandparents, step-parents and others where relevant.
Consent orders may be more appropriate where there is a higher degree of conflict between the parents, or where greater certainty is required.
Following a mediation, parties may have a written informal agreement, often titled “Heads of Agreement”. This agreement will not be a parenting plan unless it is signed and dated by the parents, and can only be a guide for the making of consent orders if that is what is wanted by the parties.
Parenting plans are an informal and flexible document that reflects an agreement reached between the parties as to the parenting arrangements for the children. To be recognised as a Parenting Plan under the Family Law Act, the document must be in writing and signed and dated by both parents. Others such as grandparents or step-parents can also be included in the parenting plan.
Parenting plans are non-binding, providing scope for re-negotiation and amendment if circumstances change. Parenting Plans are not bound by the rules of the Court, and can, therefore, cover a broader range of issues and be tailored to suit the individual needs and concerns of the parties. As parenting plans are not enforceable, statements can be included by the parties without the need for consideration of enforcement in the event of non-compliance. Parenting plans are most suitable for parents who are able to continue to communicate effectively and make joint decisions about their children after separation.
It is important to obtain legal advice as to what structure is most appropriate for you depending on your individual circumstances. If you have recently separated and are unsure of your next steps in your parenting matter please contact us to make an initial consultation so that we can advise you accordingly. 02 9633 1088