When parents separate, they often reach their own agreement about the children. The next question is how to record it. In Australia the two main options are a parenting plan or consent orders. They can look similar on paper but carry very different legal weight.
This article sets out what each option is and how they differ. It covers enforceability, how consent orders are made and how a parenting plan can affect existing orders. It also notes where the rules vary between states. The aim is to give you a clearer starting point before you get advice.
What a parenting plan is
The Federal Circuit and Family Court of Australia describes a parenting plan as a written agreement that sets out parenting arrangements for a child or children. It is worked out and agreed jointly by the parents. No one needs to go to court to make one. That makes it a flexible option for many families.
The Legal Aid Queensland guide to parenting plans and consent orders says a parenting plan must be in writing. It must be dated and signed by each parent or person involved. It must also be made free from any threat, duress or coercion. An agreement that misses these steps may not count as a parenting plan at all. A plan can deal with any part of a child’s care, welfare and development.
Common topics include where the children live and how care is shared. Families can also cover religious, cultural and educational matters. Parents can include as much or as little detail as they agree on. Travel is another area worth thinking about, and our article on children of divorced parents travelling covers some of the legal points.
Is a parenting plan legally binding?
No. The Federal Circuit and Family Court states that a parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court. If one parent stops following the plan, the other cannot have it enforced in the way an order can be.
A plan can still matter later. The Family Court of Western Australia notes that if you later apply for parenting orders, the court can consider the plan. This means the terms you agree on are not meaningless. They can show what both parents once thought was workable.
What consent orders are
Consent orders are orders that both parties agree on and then ask the court to make. Legal Aid Victoria describes them as a written agreement about parenting arrangements approved by the Federal Circuit and Family Court. Once made, they are orders of the court and are legally binding. The Court warns that breaching them can have serious consequences, including imprisonment in extreme cases.
Consent orders can cover the same ground as parenting orders made after a hearing. Legal Aid Queensland lists who a child lives with, the time they spend with others and how they communicate. Orders can also allocate parental responsibility. This covers major long term decisions such as schooling and health.
How consent orders are made
In most cases you do not need to attend court. The Federal Circuit and Family Court guide to agreed parenting arrangements explains that you file an Application for Consent Orders with a copy of the proposed orders. The orders can then be made without a hearing. Legal Aid Victoria notes there is usually a fee for filing the application.
The court does not simply rubber stamp what parents agree. Under the Family Law Act 1975, the court must treat the best interests of the child as its most important consideration. Agreed arrangements are still checked against this standard. Our article on how the court decides child custody looks at this in more detail. Careful drafting helps the process.
Changing arrangements later
Families change and arrangements often need to change too. The Federal Circuit and Family Court says that, unless a court orders otherwise, parents can agree to change a parenting order by entering into a parenting plan. This can be a simple way to adjust things without going back to court. However, the new plan itself is still not enforceable.
Changing consent orders through the court is harder. The Court notes there are only limited circumstances in which they can be changed. This is why it pays to think carefully before signing. The Court recommends getting legal advice before entering into either option.
Choosing between the two
A parenting plan may suit parents who communicate well and want flexibility. Consent orders may suit families who want certainty and the ability to enforce the arrangements. Some parents start with a plan and move to consent orders later. Others go straight to orders. Legal Aid Victoria also mentions amica, a free online tool that can help separating parents record their decisions.
Before either step, it helps to be clear that the relationship has ended. Our article on proving you have legally separated covers what the court looks for. Money matters usually need sorting at the same time. Our piece on the financial fallout after separation covers that side.
Differences between states
Most parenting matters in Australia go through the Federal Circuit and Family Court of Australia. Western Australia has its own Family Court, with its own information and processes. Legal Aid services in each state also publish their own guides. Check the information that applies where you live.
Frequently asked questions
Is a parenting plan legally binding in Australia?
No. A parenting plan is not a legally enforceable agreement. A court can still consider it if parenting orders are later sought. If you want arrangements you can enforce, consent orders are the usual path.
Do we have to go to court to get consent orders?
Usually not. You file an Application for Consent Orders and a copy of the proposed orders. The orders can be made without a hearing. There is usually a filing fee.
Can a parenting plan change a court order?
It can in many cases. Unless a court orders otherwise, parents can agree to change a parenting order through a parenting plan. The plan must still meet the usual requirements. It should be written, dated, signed and made without threat, duress or coercion.
What does the court look at before making consent orders?
The court must treat the best interests of the child as its most important consideration. This applies even when both parents agree. The court checks the proposed orders against that standard. Clear and practical terms help the process.
This article is general information about Australian family law only and is not legal advice. Laws and court processes differ between states and change over time. Speak with a qualified family lawyer about your own situation.
