Key Takeaways:
- Parenting agreements, such as parenting plans, consent orders, and parenting orders, are crucial for separated parents to establish arrangements for the care and upbringing of their children.
- Parenting plans are informal written agreements that offer flexibility and simplicity in their creation, but they lack legal enforceability, potentially leading to conflicts if not followed by both parties.
- Consent orders, on the other hand, are court orders that make a parenting plan legally binding and enforceable, providing a greater level of assurance that both parties will adhere to the agreed-upon terms.
- Parenting orders are decisions made by the court when parents are unable to reach an agreement, and they prioritise the best interests of the children. These orders are legally binding, and non-compliance may result in serious legal consequences for the offending party.
- Seeking legal advice is not mandatory for creating a parenting plan, but it is highly recommended to ensure all relevant factors are considered.
Parenting is pretty tough – even when you are still in a relationship with your child’s other parent. When you add the complication of no longer being in a relationship with your child’s other parent to the mix, it can make parenting very difficult.
When your relationship or marriage breaks down and you have children, as parents, you must prepare a parenting agreement that outlines how you will parent moving forward.
These agreements should cover a wide range of topics including where the children will live and how they will communicate with each parent and should ultimately make it easier for both parents and children to move forward after the breakdown of the relationship.
But how do you create parenting agreements? The family law system in Australia can be complicated and at times difficult to understand, especially if you’re in the process of separating, so to help you understand your options, we’ve put together some information about parenting agreements. We’ll cover what should be included in parenting agreements, how the agreements can be made and the pros and cons of each of these options.
Keep reading to learn about parenting agreements in Australian family law.
What is a parenting agreement?
A parenting agreement is an agreement between the parents of a child, usually under the age of 18, regarding how they plan to parent moving forward.
The parenting agreement should cover matters that affect you, your child and your child’s other parent immediately, as well as consider situations and scenarios that you may face in the future.
The aim is to create an agreement so that each parent (and child, where appropriate) knows how to make decisions and when they need to consult with each other when it comes to parenting their children.
Some of the things that should be included in your parenting agreement include:
- Where the children will live;
- How they will spend time with each parent;
- If there are shared care arrangements, how long they will stay with each parent;
- Religious considerations;
- Where they will go to school;
- Cultural aspects;
- Medical treatments and health-related issues;
- Extracurricular activities the children are in and how they will be facilitated; and
- How to manage holidays and travelling.
These are only some of the matters that could be addressed in your parenting agreement.
What does the law say about parenting and parenting agreements?
When it comes to parenting and the Australian family law system, the priority factor that should be considered when making decisions that affect children is “the best interests of the child”. A number of factors can impact the best interests however, the two key principles of the child’s best interests are the benefit of the child having a meaningful relationship with both parents, and the child having the right to be protected from any type of harm.
In addition to parents making arrangements that are in the best interests of the child, there is also the presumption of equal shared parental responsibility. This means that parents have the duty, power and responsibility to make decisions for their child/ren, and they share this equally. The presumption means that parents automatically have this, however, it is possible for one parent to apply for sole parental responsibility and this may occur in instances where there is family violence.
When parents separate, they must demonstrate that they have appropriate parenting arrangements in place, and they are encouraged to create their agreements outside of Court.
How to make a parenting agreement
Parenting agreements can be oral agreements, written agreements, or court orders and they can be made in court or outside of court, as well as privately between the parents or with the assistance of lawyers, mediators, or counsellors.
While there are numerous ways parenting arrangements and agreements can be created, the most common options include:
If you’ve been researching parenting agreements, you’ve probably come across each of these terms, and potentially may have gotten confused, which is entirely understandable.
Below, we’ve broken down each of these options to make it a lot easier to understand.
Parenting plans
What is a parenting plan?
A parenting plan is an informal written agreement about how you plan to parent your children. It can be as simple or as detailed as you like and must be a written agreement that has been signed and dated by both parents.
It doesn’t have to be written in any kind of fancy legal jargon or anything, the aim is to create an agreement that is clear and easy for both parties to understand.
What are the pros of a parenting plan?
Choosing a parenting plan for your parenting agreement has a variety of advantages, including:
- It’s easy and doesn’t require any further steps other than writing out the agreement and both parties dating and signing it.
- You don’t need to go to court or work with a lawyer to create it.
- It’s flexible and can be tailored entirely to your unique situation.
- Though a parenting plan is not enforceable legally, it can serve as evidence of your agreement.
What are the limitations of a parenting plan?
While a parenting plan has some convenient benefits, there are limitations to them. Some of the limitations of a parenting plan include:
- It is not a legally enforceable agreement, so if one parent doesn’t follow it, there may be little to no ramifications.
- The lack of enforceability can make it possible for conflict to arise between parents, particularly if the plan isn’t followed.
When is a parenting plan appropriate?
A parenting plan is a good option when both parents can agree easily and trust each other to stick with the agreement or be able to communicate effectively if changes need to be made.
A note about parenting plans
While a parenting plan is not legally enforceable, it does serve as evidence of an agreement between the parents, and if one parent breaks the agreement and the other parent decides to seek legal action, the court does take parenting plans into consideration when reviewing matters of this nature.
Do I need a lawyer for a parenting plan?
Technically you don’t need a lawyer to create a parenting plan, however, seeking legal advice wouldn’t hurt. They can let you know if your agreement is taking all relevant factors into consideration, as well as the limitations the agreement may pose as well.
Consent orders
What is a consent order?
A consent order is a type of court order that has been made at the request of the parties involved in a matter. It essentially involves two parties making an agreement together, like a parenting plan, and then applying to the courts to make the agreement an order that is legally binding.
As the parties came to the agreement themselves and apply for it, it is called a consent order. Consent orders are commonly made by parties involved in a separation and can be made regarding matters like property settlements and parenting matters.
Formalising a parenting plan through a consent order application means that the agreement will be legally enforceable and if not followed, the person breaching the order may face serious consequences.
What are the pros of consent orders?
Consent orders have a number of benefits, some of which are similar to the benefits of parenting plans. Here are some of the benefits of consent orders for parenting matters:
- A consent order, like a parenting plan can be tailored to suit your unique needs and family circumstances.
- As a consent order is legally binding, there is a likelihood that both parties will follow the terms of the orders.
- There can be legal consequences if a party breaks the terms of the consent order.
What are the limitations of consent orders?
Consent orders also have their limitations, here are some of the cons of consent orders:
- Changing consent orders can be difficult once they are in place. You will most likely require legal help to do so.
- A consent order application is not guaranteed to be approved by the court so you may be required to revaluate your proposed agreement.
When is a consent order appropriate?
A consent order is a great option when you and your ex-partner or parent of your other child are able to come to an agreement about how you will parent moving forward, and you want to be protected if either party breaches the agreement. It allows for cooperation between the parties and flexibility to create an agreement that suits them but also add more assurance that the agreement will be followed.
A note about consent orders
Consent orders can be made about a wide range of things, including not only parenting matters but also property settlements and financial arrangements.
Do I need a lawyer for consent orders?
Again, technically no you do not need a lawyer to apply for consent orders, however, before entering into such a serious legal agreement, we highly recommend getting advice on your agreement to ensure you’ve covered all of the right information and you understand what is required of you.
Parenting orders
What is a parenting order?
A parenting order is an order (decision) made by the court about how you will parent your children when you’ve separated. This will include the parental responsibilities of each party as well as various care arrangements.
Parenting orders are legally binding, like consent orders, however, they are applied for when two parents cannot come to an agreement together about arrangements for your children. The court decides based on information and evidence provided by parents.
As they are court orders, if a parenting order is broken by a party, they may face serious legal ramifications.
What are the pros of parenting orders?
Parenting orders have a number of positive advantages, including:
- Decisions are made with the best interests of the children as the priority. This is a key consideration made by the court.
- As parenting orders are legally binding, if the order is not followed, the offending party may face legal consequences like changes to arrangements, fines and even imprisonment.
- The court aims to provide the parties with clear guidelines of how they are to parent moving forward.
What are the limitations of parenting orders?
While there are positives for parenting orders, there are also a number of limitations, including:
- Parenting orders are less flexible than parenting plans as they are not able to be changed easily.
- You have less control over the final outcome. While the individual factors of your situation are taken into consideration when the court makes decisions, the outcome may not be as favourable for you.
- You will need to go to court, which can be time-consuming and costly.
When is a parenting order appropriate?
Parenting orders are a great option when it’s just not possible for you and your former partner/child’s other parent to come to an agreement. Sometimes our situations can be so overwhelming that it’s difficult to make decisions, and in some circumstances, it’s just unsafe to work with your child’s other parent to create parenting arrangements.
A note about parenting orders
Before you can apply to a court for parenting orders, you will almost always need to attempt to resolve your dispute and come to an agreement through other means, such as family dispute resolution, which is a type of mediation. In situations where there is violence, or risk of violence, you may be exempt from this requirement.
Do I need a lawyer for parenting orders?
No, however, it is strongly recommended that you talk to a family lawyer before applying for parenting orders. Parenting agreements and arrangements can be made in a variety of ways and can take time, however, working with a lawyer you can explore all of these options and avoid having to go to court and lose control of your agreements.
Should I get legal advice when creating parenting agreements?
Yes. It doesn’t matter whether you’ve easily been able to reach an agreement with your ex or you’re locked in a hard dispute, seeking the advice of a family lawyer experienced with parenting agreements and matters is one of the best things you can do.
While you can engage a lawyer at any point, we recommend talking to one as early as possible. That way you can get an understanding of your obligations, and your options and really know where you stand. This can make it significantly easier to resolve disputes between you and your child’s other parent.
It’s also important to note that just because you seek legal advice, it doesn’t mean that you’re stuck working with a lawyer. You can simply talk to us or we can help you with preparing agreements, application and represent you too.
Do you need help with parenting agreements in Australia?
We know how tough relationship break ups can be, especially when children are involved. That’s why we offer our family law services to help parents find the best solution to solve their problems to people Australia-wide. You can talk to our family lawyers about any legal aspects about parenting or any concerns that you have. We’re here to help people to navigate the family law system and move forward with their lives.
Talk to us today by calling us on 1300 667 461 or booking a consultation using the button below.
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