Parenting Plans vs Court Orders: Which Do You Need?

Key differences at a glance

The fundamental distinctions between parenting plans, consent orders, and court-made orders relate to their enforceability, formality, and the process required to create them.

Parenting plans explained

A parenting plan is a written agreement between separated parents about the care arrangements for their children. It is not legally binding but can still be a valuable tool for cooperative parents.

Under the Family Law Act 1975, a parenting plan is a written agreement (not a deed or oral agreement) between parents about parenting arrangements for their children. It must be signed and dated by both parents.

Flexibility

Parenting plans can be changed at any time by mutual agreement — simply create a new plan with the updated arrangements. This flexibility is ideal when children's needs change as they grow.

No cost

There are no filing fees or court costs involved. Parents can create a parenting plan themselves or use templates and guidance tools to structure their agreement.

Limitations

If one parent stops following the plan, the other cannot apply to the court to enforce it. The only recourse is to negotiate, attend mediation, or apply for court orders.

Consent orders explained

Consent orders are legally binding court orders made when both parents agree on the arrangements and apply jointly for the court to formalise their agreement.

To obtain consent orders, parents complete an Application for Consent Orders and a draft of the proposed orders (Minutes of Consent Orders). Both parents must sign these documents.

The application process

1. Draft orders — complete the Minutes of Consent Orders setting out all agreed arrangements in specific detail.
2. Application form — complete the Application for Consent Orders form with both parents' details and declarations.
3. File with court — file the application online through the Commonwealth Courts Portal or in person and pay the filing fee.
4. Court review — a Registrar reviews whether the orders are in the children's best interests. No court attendance is required.

Advantages of consent orders

• Legally enforceable — breaches can result in contravention applications and penalties.
• Court-approved — a judicial officer confirms the arrangements are appropriate.
• No court attendance — usually processed on the papers without a hearing.
• Lower cost — much cheaper than contested proceedings.

Court-made orders

When parents cannot agree on parenting arrangements, either party can apply to the Federal Circuit and Family Court for orders. A judge will then make decisions based on the children's best interests.

Contested parenting matters follow a structured court process that typically includes multiple hearings and may involve a family report prepared by a court-appointed expert.

The court process

• Initiating application — the process begins with filing an Initiating Application (Parenting) and an affidavit setting out your evidence and the orders you are seeking.
• Response — the other parent has an opportunity to file a Response and their own affidavit explaining their position and the orders they seek.
• Case management — the court conducts case management hearings to narrow issues, encourage settlement, and prepare for trial if necessary.
• Trial — if settlement is not reached, a final hearing is conducted where both parties present evidence and the judge makes orders.

When to use each option

Choosing between a parenting plan, consent orders, or court proceedings depends on your specific circumstances, particularly the level of conflict and cooperation between parents.

Low conflict situations

A parenting plan may be suitable when:

• Both parents communicate well and cooperate.
• There is high trust that agreements will be followed.
• Flexibility is important as circumstances change.
• Children are young and arrangements will evolve.

Need for certainty

Consent orders are advisable when:

• You want enforceable arrangements.
• There is some history of non-compliance.
• International travel is planned.
• You need clear boundaries and consequences.

High conflict situations

Court-made orders may be necessary when:

• Parents cannot reach agreement despite mediation.
• There are safety concerns for children or a parent.
• One parent is withholding the children.
• Urgent or interim orders are needed quickly.

Converting between types

It is possible to move between different types of parenting arrangements as circumstances change or if you need greater enforceability.

Converting a parenting plan to orders

If you have a working parenting plan but want the security of enforceable orders, you can convert it to consent orders by following these steps:

1. Review and update — review your current parenting plan and update any provisions that need to change. Ensure both parents agree to all terms.
2. Draft minutes of orders — convert your plan into the formal language required for court orders. Be specific about times, dates, and arrangements.
3. Complete application — both parents sign the Application for Consent Orders and the Minutes of Consent Orders.
4. File and await approval — file with the court and pay the filing fee. A Registrar will review and, if approved, the orders become legally enforceable.

Varying existing orders

If you already have consent orders or court-made orders, they can be varied in two ways:

• By consent — if both parents agree to the changes, file a new Application for Consent Orders with the varied terms. This replaces the previous orders.
• By court application — if you cannot agree, file an Application to Vary or Discharge Orders. You must demonstrate a significant change in circumstances since the original orders were made.

Common questions