When families come to mediation, it’s usually because there’s issues they haven’t been able to agree on and they need support to end the arguing and make things different. But what should they DO with those agreements? Is a parenting plan enough to protect them? Is it the right time for consent orders? How do you decide?
The first thing, is to find out what a parenting plan is and how it differs from a consent order.
A Parenting Plan is a written document of agreements regarding children. It can be agreements reached at mediation or it can be agreements you reached at the coffee shop or by email. The important part is that you and your child’s other parent have signed it and those signatures are witnessed, and it is dated.
However, a Parenting Plan is NOT a legally enforceable agreement. So why would you want one?
It’s not a legally enforceable document. This is a benefit if your separation is new and you need to test the agreement before making it water tight. If you think you’ll need a Consent Order in the future, test the Parenting Plan out for a little while to make sure it’s definitely going to work before formalising it. When separations are new, there’s often angst and high emotion. It’s okay to put some time and space between the date of separation and locking in agreements that might need to last 18 years or more!
It’s easy to change a Parenting Plan. If there’s something that doesn’t work, you just write up a new plan and sign it.
If things are going well and you have no reason to think that won’t continue, a Parenting Plan works because it’s a clear agreement that you can both go from. The important thing is that you spent time talking, discussing and coming to agreement. If there’s still trust between you, a Parenting Plan might be all you need.
It’s not legally enforceable. If one parent packs up the kids and moves to the back of Burke, you cannot ask the Police to return the children nor can you go to Court and apply to have them returned. A Parenting Plan is a Gentleman’s Agreement. It is only valuable if both parties are sticking to it.
A Parenting Plan can only cover issues relating to children. While you can reach agreement about property or who is going to contribute financially and in what regard, because it is not legally enforceable, there is no value to including property or financial matters in a Parenting Plan.
Sometimes the time spent developing a Parenting Plan is not sufficient to fully cover all the issues. This may lead to arguments because something is not clear or one parent had a different understanding of what was agreed. If this happens, there’s nowhere to turn. You can’t ask Lawyers to apply the law and you can’t ask a Judge to make a determination. It’s just you and your piece of signed paper.
A Consent Order is an agreement that is formulated into a legal document and filed with either the Federal Circuit Court in Australia or the Family Court of Australia.
The content in a Consent Order may be identical to a Parenting Plan, but once it’s filed with the Court it is a legally enforceable document.
Consent Orders are legally enforceable.
Consent Orders can deal with children, property and spousal maintenance.
Consent Orders can contain information that while not legally enforceable through the Order, may be sufficient to prove mutual intention for an application to the Child Support Agency.
Consent Orders cannot deal with issues relating to Child Support in any way that is legally enforceable. However, if there is a notation in your Consent Orders that deals with issues covered by the Child Support Act, that may suffice to prove mutual intention for the purposes of a Child Support application.
Consent Orders are very difficult to change. There is a threshold test applicable to new applications in the Court once Consent Orders have been made. If you find your Orders don’t work or no longer suit and the other parent refuses to alter from the Orders, changing them can prove expensive, time consuming and very difficult.
Consent Orders can be very expensive to formulate. There are other options available and if you’d like more information about how to create and file Consent Orders without breaking the bank, get in touch for the ‘inside scoop’.
Lots of families choose to formalise their agreements into an Order. Other families have plans they agree to, sign and have witnessed. Lots and lots of families have no written agreement at all.
What option you choose is totally up to you and your children’s other parent and what is best for your family.
* Please remember, this is information only. You should seek specialist advice from a Family Lawyer specific to your circumstances.
** To finalise property settlement, you need to either lodge your agreement with the Court via a Consent Order or include the agreement as part of your divorce application. Property settlement needs to occur within 12 months of finalising your divorce to have full benefit of the Family Law Act (1975).