Orders are made by a Court, sometimes by Consent of the parties and sometimes by the Judge after a final hearing. Neither is better or more enforceable than the other. If you and your ex-partner can reach agreement and make Orders by Consent, this is the preferred option. Not only does it save everyone time and money, but you have a lot more control over the terms of the agreement, for example agreeing that changeover is 3pm and not 5pm.
To get a Court Order you must either apply to the Court by way of an Application for Consent Orders (where both parties are agreeable to the terms of settlement) or by way of an Initiating Application (where there is no agreement and you are seeking Orders from the Court). A filing fee is payable to the Court in both instances. An Application for Consent Orders can take 2-6 weeks to be considered and finalised by the Court, whereas an Initiating Application can take several months or even years to finalise (depending on the complexity of the matter and whether agreement is reached by the parties throughout the course of the matter or a final hearing is required).
Court Orders are enforceable. This means if the Orders are breached (that is if a party fails to follow the terms of the Orders) you can start Contravention proceedings. If the other party is found by the Court to have breached the Orders, the Court can impose a penalty such as a fine, a bond, make-up time missed with the child/ren because of the breach and even jail time for very serious breaches.
Orders can be difficult to change, and even if you have consent of both parties to change the Orders, there is a process involved. An application is required to be made to the Court, there is a filing fee and the Court is required to consider the Orders to ensure they are ‘just and equitable’.
A Parenting Plan can be entered into by the parties very quickly and easily. The document is drawn up to include the terms of the agreement reached, signed and dated. The document is not required to be sent to or approved by the Court. There is also no filing fee payable for a Parenting Plan as it is not sent to the Court.
A Parenting Plan is very easy to change. If part of the agreement needs to change, this can be done easily with an additional Parenting Plan. Alternatively, if the entire agreement has changed, a new Parenting Plan can be prepared and signed by the parties.
However, a Parenting Plan is not enforceable. This means that if a party breaches the terms of the Parenting Plan, there is no penalty or risk for breaching the agreement.
Which One is Right for You?
This is a very good question and one that we get asked often. The answer is, it depends on your particular circumstances, the family dynamics, the age of the children and the relationship between the parents. What works for one family may not work for another, and sometimes what works for your family now may not be appropriate in the future.
This is why it is important to get legal advice before signing any documents. Contact Turnbull Legal Solutions to discuss your options.