Consent orders and parenting plans: What is the difference and why you should choose a consent order.
Our Principal, Glenn Thexton - a Family Law Specialist - will advise you on any proposal you have for consent orders in terms of how to draft any agreement in the correct legal form to be acceptable for the Family Court to make those orders.
Consent Orders can be entered for both financial property separation and “child spend time” arrangements.
We can advise you on the transfer of property and how to avoid incurring stamp duty on transfers between spouses and other third parties on a separation. We also provide advice on the requirements of re-financing property into one spouses name in terms of signing off on final orders for the bank to allow a re-financing to progress.
When two parents decide to split up and there are children involved, it is best to make sure that any decisions you make going forward are done so with the child first and foremost in mind. The best way to do this is to draw up either a parenting plan or a consent order.
A parenting plan or consent (parenting) order is when a former couple reaches an agreement regarding the arrangements regarding the parenting of their child, except that one is an informal agreement and the other is considered by the court.It is not advisable to leave such an agreement as informal (parenting plan), due to the possible risks of either party backing out or no longer agreeing to the terms, which could lead to discord and, in turn, negatively affect the child.
Having a consent order also removes the chance of any misunderstandings or possible legal costs if unexpected issues come up in the future, making sure that the child and their needs will always be put first. You need to be aware that consent orders cannot contain the following factors: if you have issues around child support and maintenance, medical procedures, if you have a de facto relationship, or a parenting order that is in favour of someone who is not a parent (grandparent, or relative).
The best way forward is to file a written agreement to the court for approval, for a fee of AU$155. Although a consent order ismore typically set up between the two parents, it is possible for grandparents and other relatives to file a consent order. If both parents agree on the content of the consent order, then there is little chance you will need to appear in court, as an application such as this is mostly administrative.
In order for the court to approve the consent order however, they must be satisfied that the conditions in the agreement are in the best interest of the child.At the time of the order, the court will take into account the child’s intellectual maturity and age when making any decisions.
For the consent order, unless otherwise specified, the court will assume that both parties will share equal responsibility unless there is a case of family violence or abuse. Both parents must be able to make any big decisions regarding the child together, and if one parent is looking to have more responsibility than the other, they must be able to prove to the court that this decision is in the best interest of the child.
The consent order must look at how much time is spent with each parent, and if it shall be equal for both, or if one shall receive more time than the other, as well as if this time shall also be spent with a grandparent or relative.
A consent order may also include details regarding child support and maintenance, as well as information regarding the child’s upbringing, which may include education, religion, health and culture.
If the court is in agreement with the terms that have been drafted by you and your former partner, they will seal the consent order and both parties will receive a copy. It is important to note that a consent order carries the same weight as a court order made by a judge, and to breach this consent order is taken seriously. If you are found to be in breach of the order, you may be required to take part in a parenting program, or severe penalties could be imposed.
We will advise you on the enforceability of consent orders to ensure that any agreement between spouses is carried out with regards to the separation and payment of a property settlement or transfer of property.
Any changes made to a consent order can be done so if a parenting plan is drawn up and agreed upon by both parents. They can also approach the court to make a change to an existing consent order.