Introduction.
Are you facing the challenge of deciding how to formalise parenting arrangements after separation? Whether you’re trying to avoid the court system or seeking binding certainty, the choices can feel overwhelming. If you’re worried about enforceability, flexibility, costs, or protecting your child in case of conflict, you may be weighing the merits of a Parenting Plan versus Consent Orders. In this article we explore whether a Parenting Plan or Consent Orders is the right option for your family.
If you’re unsure which option best suits your family’s needs, consultNorth Sydney Family Lawyers for personalised legal advice focused on your unique circumstances.
What is a Parenting Plan?
A Parenting Plan is a written agreement between parents (or other persons) that sets out arrangements about who the child lives with, time spent with each parent or others, decision‑making about major long‑term issues, and dispute resolution procedures if disagreements arise.
To be valid under s 63C of the Family Law Act 1975 (Cth) it must be in writing, dated and signed by both parties, made free from coercion or duress. Other people, such as step‑parents or grandparents, can also be included.
However, Parenting Plans are not legally enforceable. If one parent fails to comply, the other cannot issue penalties or fines because the plan is not a court order. Still, if a dispute later goes to court, the court must consider the terms of the most recent Parenting Plan when making parenting orders, provided doing so is in the best interests of the child.
What are Consent Orders?
Consent Orders are written arrangements agreed between the parties and submitted to a court for approval. Once the court considers that the orders are in the child’s best interests, the orders are made by a Registrar or Judge and become binding court orders.
Consent Orders must comply with the Family Law Act’s criteria on best interests (ss 60CA, 60CC) and parental responsibility (ss 61B, 61C, 65DAC). They can cover living arrangements, time spent, parental responsibility, child maintenance, consultations on major decisions and dispute‑resolution steps.
Because Consent Orders are court‑approved, they are legally enforceable. Breaches may lead to enforcement actions, compensation orders, make‑up time orders, bonds, fines, or even imprisonment in severe cases.
The Legal Framework for Protecting a Child’s Best Interests and Safety.
Under s 60CA of the Family Law Act, the best interests of the child are the “paramount consideration” for any parenting order. Section 60CC sets out the primary and additional considerations, such as meaningful relationships with both parents and protection from harm.
Recent reforms (Family Law Amendment Act 2023 and related legislation) came into force on 6 May 2024, removing the presumption of equal shared parental responsibility and automatic equal time, especially where family violence or abuse is alleged. These changes require courts to focus on child safety and individual parental capacity rather than assuming equality.
The court also must consider the views of the child, developmental, emotional, and cultural needs, and whether equal time or substantial time is reasonably practicable, as emphasised in cases like MRR v GR [2010] HCASum 4, where the High Court clarified that equal time must be practicable to be ordered.
Practical Comparison of Parenting Plans vs Consent Orders.
Flexibility vs Binding Certainty.
A Parenting Plan offers flexibility: it can be changed at any time by mutual agreement at minimal cost. It suits families where communication remains respectful, arrangements may need to adapt, and enforcement is unlikely to be required.
In contrast, Consent Orders are rigid; they cannot be varied without applying to the court unless both parties agree. They provide certainty and enforceability when trust is low or conflict is possible. Once lodged and approved, only a significant change in circumstances or mutual consent allows variation.
Legal enforceability.
As noted, Parenting Plans lack enforcement power. Consent Orders are enforceable through court mechanisms under Part VIIA of the Family Law Act, with serious penalties for non‑compliance.
Cost and complexity.
Parenting Plans are cheaper. They require no court filing or registry fees. Consent Orders involve some filing costs and potential legal fees. That said, they are generally more cost‑effective than contested hearings.
Court consideration.
Even if you have a Parenting Plan, if matters later proceed to court, the judge must consider the plan but is not bound by it; decisions remain based on the child’s best interests. Consent Orders restricted this potential divergence, providing a binding framework.
Safety and risk management.
In situations where there has been family violence, abuse, or power imbalance, a Parenting Plan may offer inadequate protection. Consent Orders can embody safety conditions: supervised contact, change‑over arrangements, non‑denigration clauses, passport restrictions, or conditions that ensure child safety. The court must refuse orders, or modify them, if the arrangements place a child at risk.
When is a Parenting Plan appropriate?
A Parenting Plan may be ideal when parents maintain good communication and trust, flexibility is important (for example, young children whose routines evolve), costs need to be minimal, and there is no history of family violence or imbalance.
A well‑drafted Parenting Plan can include provisions for dispute resolution, consultation on major decisions, and structure, but without the weight of binding court orders.
When Consent Orders are preferable.
Consent Orders are more suitable where there is history or risk of conflict, parties are unlikely to comply voluntarily, legal enforceability is desired, or specific safety conditions (e.g. supervised time, restrictions) are required.
Courts will only approve Consent Orders if they are satisfied the terms are in the child’s best interests, in line with reforms post‑May 2024 that emphasise safety and developmental factors.
Consent Orders also formalise parental responsibility allocation: shared, sole or split responsibility as agreed, but always subject to court approval. They reflect decisions about education, health, religion, name changes, major long‑term issues envisaged by ss 65DAC and related sections.
If later circumstances change seriously, such as relocation, schooling needs or violence allegations, the court retains the power to vary or suspend orders under s 70NBC, with the capacity to order new arrangements or compensate time lost under s 70NBF.
Conclusion.
Choosing between a Parenting Plan and Consent Orders depends on your family’s circumstances, communication style, risk profile, and need for enforceability. Parenting Plans offer flexibility and low cost if cooperation is high. Consent Orders provide legal certainty, enforceability, and protection where conflict, risk, or safety concerns exist.
If you are considering how best to structure parenting arrangements for your child, or are unsure whether a Parenting Plan or Consent Orders suit your situation, seek legal advice or speak with a qualified family dispute resolution practitioner. Understanding your rights and the legal framework can ensure any agreement supports your child’s best interests and future stability.
For clear, personalised guidance on parenting arrangements, consultNorth Sydney Family Lawyers to ensure your agreement meets both legal standards and your family’s unique needs.