A parenting plan is a written up agreement reached between two people, usually following their having attended mediation through a family relationships centre. Both parties sign the agreement, which makes provisions for future care arrangements for a child or children in the relationship. A parenting plan is not, however, legally binding and cannot be enforced by a court. It is often the case that these documents are loosely drafted and would not be capable of enforcement, even if a court were to be giving one consideration.
A court Order in relation to parenting matters will often set out similar provisions to a parenting plan; however, the difference is that the court Orders are drafted in a way that enables them to be legally enforced by a court if called upon to do so. Also, because the Court made the agreement reached into court Orders, they are legally binding and enforceable, whereas a parenting plan is not.
Many people attend a family relationships centre and have a parenting plan which reflects the future parenting arrangements for their children prepared for them. They then take this to a family law solicitor who can draft the document in a way that the Court will accept and make Orders in accordance with. There are many matters that often appear in parenting plans that cannot form part of parenting Consent Orders; however, most good lawyers will be able to put the bulk of the material from a parenting plan into a Minute of Order for the Court to consider. If you have gone to the effort of attending a Family Relationships Centre and been able to reach an agreement with your former partner – often no small achievement – having court Orders made that reflect your agreement will give you both peace of mind for the future and cement what you have agreed to.
A parenting plan cannot be relied upon if one party decides they will no longer comply with it, whereas a court Order must be complied with, and a party’s changing circumstances will not enable them to change its terms or refuse to comply with the Orders unless an agreement to this effect can be reached between the parties.
How do I apply for a family court Consent Order?
If you do not already have court proceedings on foot before the Family Court, then there are two documents that must be filed with the Family Court in order to obtain Consent Orders.
The first document is called an “Application for Consent Orders“. For property matters, this document out each party’s background and income and then each party’s assets and liabilities, including their superannuation. At the end of the document, there is a table which sets out a mathematical summary of the outcome that is being proposed in a monetary format. The Court can readily identify from this the overall percentage split, and this assists them with determining whether the outcome is fair and equitable. For parenting matters, the current arrangements in relation to the children, including their current living arrangements, education, health and other matters, are set out in the Application for the Court to consider.
The second document that must be filed Is a Minute of Order which, in essence, sets out precisely the Orders that you are asking the Court to make, both in relation to property settlement and for parenting matters.
Provided that the documents are properly drafted and all relevant information is contained and provided that the Court considers that the outcome in relation to a property settlement is fair and equitable and that the outcome in relation to parenting Orders sought is in the best interest of the child or children, then court Orders will usually be made in accordance with the documents filed.
It is important to note that the Family Court will never vary the Consent Orders that you have submitted to something it considers more ‘fair’ or practical. If the Court has concerns with what you have submitted, it will issue a requisition which you will be required to answer, addressing the Court’s concerns. The matter will then be reconsidered after the requisition has been properly addressed.
