One of the most common questions that we receive regarding parenting matters, is whether the parties should formalise their arrangements through a parenting plan or using parenting consent orders. Each approach has advantages and disadvantages and may be appropriate or inappropriate depending on the circumstances of each matter.
A parenting plan is essentially a written and signed voluntary agreement between parents, which deals with:
- Who the child will live with;
- The time that the child will spend with each parent;
- How parents consult on major long-term issues relating to the child; and
- Any other matter that the parties wish to address.
Parenting plans are flexible, as they can be changed at any time by written agreement between the parties. However, the great flaw of parenting plans is that they are not legally binding and therefore cannot be enforced against the parties. If one party fails to comply with the agreement, there is no mechanism to have the agreement enforced by the Court although the Court is required to consider parenting plans if litigation is commenced.
So, given that they are flexible but cannot be easily and immediately enforced, when are parenting plans appropriate? Parenting plans may be appropriate in circumstances where:
- The parties can openly and freely communicate about issues pertaining to the child; and
- They simply want to provide structure their co-parenting arrangement.
When parties are able to reach agreement, they can apply to the Court for Consent Orders. The proposed terms will be considered by the Court and, if deemed to be in the best interests of the child, will become Court Orders.
These Orders differ from parenting plans as they are legally enforceable. Failure to comply with Orders can carry significant consequences and should not be treated lightly. This is the clear benefit to Consent Orders, as it provides greater certainty and security that the agreed upon terms will be followed.
Orders are often preferable where there is a possibility that one party may fail to comply with the terms of the agreement. Not only will there be remedies available to the other party if the Orders are contravened, but the Orders will also act as an active deterrent against potential breaches.
It is important to note that if you have a set of Orders in place, the parties can mutually agree to changes to the arrangements by way of a Parenting Plan. However, if the parties cease to agree on the arrangements the original terms of the Orders will once again come into effect.
The Orders are otherwise binding on a final basis, unless varied by a Court. If the parties agree to vary Orders in the future, they are able to file further Consent Orders to give effect to this variation. However, where only one party wishes to vary the Orders, they will need to demonstrate that there has been a significant change in circumstances which justifies the variation of the Orders.
Parties should not presume that they will be able to vary final Orders in the future and should be extremely careful when binding themselves to Orders.
Which Option is Better?
There is no clear cut and simple answer to this question. Choosing the right option will always be dependent upon the individual parties and their personal circumstances.
However, choosing the wrong option could have significant consequences. As such, it is always important to obtain strong legal advice prior to deciding.
If you wish to seek advice on what option is right for you, or require assistance in the preparation of an agreement, please don’t hesitate to contact the team at A.L.F. Family Lawyers.