The Family Law Act applies in every state of Australia and includes provisions for parents to make an agreement or consent orders regarding the future care of, and access to, their children after separation.
If you and your former partner have reached an agreement you can either make a Parenting Plan or, if you want to make an agreement that is legally binding, you can apply to the Court for Consent Orders.
You should consider getting legal advice on your rights and responsibilities under the law so that you understand the consequences and effects of the agreement you want to make. It is also important that your agreement is written in a way that is clear to you and the other parent and to anyone else who may need to see it, such as the children’s school or day care centre.
A parenting plan is a written agreement that sets out parenting arrangements for children. It is not a legally enforceable agreement. Because it is worked out by both of you, you and your former partner do not need to attend court either to make it or to change it.
A parenting plan can even be used to change a parenting order or a consent order that was made by the court (unless a court has ordered otherwise) if you and your former partner agree.
If you agree to terms in a parenting plan that are different to those in the court order, you cannot rely on the court order terms or complain to the court that the terms have been broken.
A consent order is a written agreement that is filed with the court for approval. Once the court approves the consent orders they have the same standing as an order made after a Court hearing and if you break a consent order you can be penalised.
Consent orders are usually an agreement between the parents of the children however grandparents and other relatives can also file for consent orders about children who are related to them. The application can be prepared by a lawyer, or by the parents using the Family Court’s Consent Orders kit. It is then filed with the court, together with the filing fee, which is currently $155.00.
Even though you both agree to the orders sought, the court will not approve the Consent Orders unless it is satisfied that the orders you ask for are in the best interests of the children. They will start with the presumption that it is in the children’s best interests for both parents to have equal shared parental responsibility, except in cases where there is family violence or abuse. Equal shared parental responsibility means that both parents share the big decisions about their children, including those that affect the children’s health, schooling, or religion. If you are seeking something other than equal shared parental responsibility, you will need to convince the court that your agreement is in your children’s best interests.
The orders should also address how much time the children will spend with each parent. This may include whether that will be equal time with each parent or substantial and significant time with one parent (this includes not only weekends and school holidays but weekdays and other days). The court needs to consider whether your proposal for spending time with each parent is practical and in the child’s best interests. Your consent orders can also address issues such as whether a child will spend with time a grandparent or other relative and what other forms of communication a child will have with a parent.
You may wish to set out what form of consultation is required between the parents on any aspect of the children’s care, welfare and development, including their education, health, religion and the cultural aspects of their life. In some cases, consent orders can also include child support and maintenance.
Other matters that might be addressed in consent orders can include how the children will be cared for in school holidays, on pupil free days, on school days when they are sick and before and after school. You may also wish to include orders regarding their attendance at any family, educational, religious, cultural or sporting activities and any overseas holidays.
Watch the video below to learn more about consent orders.