Parenting Plans vs Consent Orders in NSW: What Is the Difference?

When parents separate, making arrangements for their children can be one of the most challenging parts of the process. Decisions about where children will live, the time they spend with each parent and how important decisions about their upbringing will be made can have lasting consequences for the whole family.

While some parents are able to reach agreements relatively easily, others need assistance working through different expectations, practical challenges or disagreements about what is best for their children.

In Australia, parenting arrangements can be recorded in a parenting plan or formalised through consent orders. Both can provide clarity, but there are important differences in how they operate, whether they are legally enforceable and what happens when circumstances change.

What is a parenting plan?

A parenting plan is a written agreement between parents that records the arrangements they have made for their children following separation. It must be signed and dated by both parents and entered into voluntarily.

A parenting plan can cover where children will live, the time they spend with each parent, arrangements for school holidays and special occasions, and how parents will make important decisions about their children's upbringing.

For parents who can communicate and cooperate effectively, a parenting plan can provide a useful framework for managing everyday arrangements. It allows families to document their agreement without needing to apply to the court and can be updated by mutual agreement as their children's needs change.

However, a parenting plan is not legally enforceable in the same way as a court order. If one parent stops following the agreement, the other parent cannot simply ask the court to enforce the parenting plan as though it were an existing parenting order.

A parenting plan may still be considered in future family law proceedings and can provide an important record of what parents previously agreed.

What are consent orders?

Consent orders are arrangements agreed upon by the parties and formally approved by a court. Once made, they become legally binding parenting orders with the same legal effect as orders made following a contested hearing.

Consent orders can address many of the same matters as a parenting plan, including living arrangements, time spent with each parent, communication and responsibility for important decisions concerning the children.

The key difference is that consent orders are legally enforceable. Both parties are required to comply with their terms, and there can be legal consequences if an order is breached without a reasonable excuse.

Parents do not need to participate in a contested court hearing simply because they want their agreement formalised. Where an agreement has been reached, they can apply for consent orders through the Federal Circuit and Family Court of Australia.

The court must be satisfied that the proposed parenting arrangements are in the children's best interests before making the orders. Agreement between the parents alone does not guarantee that the court will approve them.

Consent orders can provide greater certainty, particularly where parents want clearly defined arrangements and a formal legal framework for their ongoing responsibilities.

What is the difference between a parenting plan and consent orders?

Although both arrangements can record an agreement between separating parents, the most significant distinction is their legal effect.

A parenting plan is a voluntary written agreement that provides flexibility but is not directly enforceable as a court order. Consent orders, on the other hand, are approved by the court and create legally binding obligations.

This difference becomes particularly important when arrangements are not followed.

For example, parents may agree that their children will spend alternate weekends with each parent. If the arrangement is recorded only in a parenting plan and one parent subsequently stops following it, the other parent cannot commence contravention proceedings based solely on that plan.

If the same arrangements are contained in consent orders, the parent may have access to the court's enforcement processes, depending on the circumstances.

However, enforceability does not mean that consent orders will be suitable for every family. The arrangements must be appropriate for the children's needs, workable in practice and capable of being followed by the people involved.

Do parents need to attend mediation before making parenting arrangements?

Family Dispute Resolution, commonly referred to as mediation, can help separating parents discuss their children's needs and work towards an agreement.

A qualified Family Dispute Resolution practitioner facilitates these discussions, helping parents identify areas of agreement and consider possible arrangements. The practitioner does not make parenting decisions for the family.

Parents who reach an agreement through mediation may choose to record it in a parenting plan or seek legal assistance to have the arrangements formalised through consent orders.

Parents are generally required to attempt Family Dispute Resolution before applying to the court for parenting orders in a contested matter, although exceptions apply, including in certain urgent matters and circumstances involving safety concerns.

Importantly, parents who have already reached an agreement can apply for consent orders without first attending mediation.

This means that families do not necessarily need to participate in mediation or a contested court process to have appropriate parenting arrangements formally documented.

What happens if parenting arrangements need to change?

Parenting arrangements that work well for a young child may become less practical as they grow older. School commitments, extracurricular activities, changes in employment and family circumstances can all influence what arrangements are appropriate.

A parenting plan can generally be updated when both parents agree, allowing families to adjust arrangements as their children's needs change.

Consent orders require greater consideration because they are legally binding. Parents may be able to agree to new arrangements and apply for updated consent orders, but existing court orders should not simply be disregarded because circumstances have changed.

There are also legal rules governing when a court can reconsider final parenting orders where the parties do not agree. Generally, the court must be satisfied that there has been a significant change of circumstances before reconsidering final orders, unless an applicable exception applies.

It is also important to understand that a later parenting plan can, in certain circumstances, affect how existing parenting orders operate. For this reason, parents should obtain advice before relying on an informal agreement to change arrangements that are already subject to court orders.

Which arrangement is right for your family?

There is no single arrangement that suits every family. The appropriate approach depends on your children's needs, your family circumstances and whether a flexible agreement or legally enforceable arrangements would provide greater certainty.

A parenting plan may be suitable where parents can communicate and cooperate effectively, while consent orders can provide a more formal legal framework for managing agreed arrangements.

Whichever approach is chosen, the children's best interests, including their safety, must remain the central consideration. It is important that parents understand both the practical arrangements and their legal implications before committing to an agreement.

If you are considering how to document parenting arrangements, or would like advice about an agreement you have already reached, Dawson Pouwhare Legal & Conveyancing can help you understand your options and prepare arrangements appropriate to your circumstances.

Legal disclaimer: This article contains general information about Australian and NSW law and is not legal advice. It may not reflect changes in the law or your individual circumstances. You should obtain advice about your situation before acting on this information.