One of the most complex parts of family separation is negotiating and eventually agreeing on your parenting arrangements. Unfortunately, life is ever-changing, even the best-laid plans will need to change in time. For this reason, this article focuses on how to change consent orders as your children's needs evolve, a parent moves, or a life event renders your current orders out-of-date.
How are Agreements reached when you separate?
When you separate, there are a few ways that you and your ex partner can formalise the parenting arrangements for your children.
Generally speaking, any agreement reached between you will set out the arrangements such as where your children live and how much time they spend with you both including during holidays and special occasions.
Agreements usually also set out things such as parental responsibility which is who makes the ‘big ticket’ decisions for the children such as schooling and health.
Arrangements for the children may be formalised in the following ways:
- A verbal agreement or negotiation/agreement via email
- A Parenting Plan
- Consent Orders - without Court proceedings
- Final Consent Orders - made during the Court process
A Parenting Plan is a written and signed agreement which sets out the arrangements for the children. Oftentimes, parents reach an agreement following their own private negotiation or mediation through a Family Dispute Resolution service. If the Parenting Plan is signed and dated by you both then there is an expectation that you both stick to the agreement. That said, it is not a legally binding document.
Consent Minutes of Order are legally drafted documents which set out the parenting agreement, however it is drafted in a more formal way and registered with the Court. There are no Court proceedings but a Registrar of the Court looks over the document and application and, if satisfied it is reasonable and in the best interest of the children, will put the court stamp on it. It then has the effect of being a legally binding Court Order which you must both comply with.
The other way that you may obtain final Consent Orders is if you have had Court proceedings and at some stage during the proceedings you and your ex partner reach an agreement. This agreement is relayed to the judicial officer and final Consent Orders are made reflecting that agreement. Again, this is a binding Court Order which you both must comply with.
What if you want to change the Consent Orders?
Do not change consent orders unilaterally
It is important to know that if you are considering changing Consent Orders that you should not do so unilaterally.
If, for example, you stopped sending your children to spend time with your ex partner then you may find yourself in Court at the end of a Contravention Application or Enforcement Application.
There are exceptions if you have a ‘reasonable excuse’ to not comply with Consent Orders. An example of a ‘reasonable excuse’ may be that the children are at risk of family violence or there are new child protection concerns.
You should get legal advice before making any unilateral changes to the Consent Orders because Contravention Applications are quasi criminal and you also want to avoid any Court cost orders being made against you.
How to change consent orders
If you want to change the Consent Orders because you think the agreement is no longer working or you have concerns about the Orders then there are a few ways to go about changing them.
Usually, you will need to continue to stick with the Consent Orders until there is an agreement between you both to change them. If you and your ex partner agree, then you can:
- Reach an informal agreement to change the orders (verbal or written communication);
- Have a subsequent Parenting Plan drafted to supersede the Consent Orders;
- Have subsequent Consent Minutes of Order drafted to supersede the previous Consent Orders.
It is always recommended to vary the Consent Orders at the very minimum by a Parenting Plan that is written, dated and signed by you both.
In some cases that will be sufficient and there is no need to go to the expense of having a lawyer draft Consent Minutes to supersede the previous Orders.
If you have concerns that your ex partner will not stick to any agreed changes then you should consider having subsequent Consent Minutes filed to have the effect of a binding Court order.
What if you cannot reach an agreement to change the Consent Orders?
If there is no agreement to change the Consent Orders for parenting arrangements then, generally speaking, you will need to try to negotiate before going to Court. In any event, it is always recommend you take options to avoid Court where you can given the potential stress and cost involved!
The other concern about initiating Court proceedings is that you may essentially ‘open up’ everything and the judicial officer may make orders that you are unhappy with.
The options available to you if there is no agreement to change the Consent Orders are:
- Instruct a solicitor to write to your ex setting out any concerns and perhaps a proposal for new arrangements;
- Attend private mediation (Family Dispute Resolution) either by yourself or with a solicitor to assist you;
- Attend a community based Family Dispute Resolution service such as Family Relationships Centre or Relationships Australia
You will not be allowed to initiate Court proceedings to vary the parenting arrangements until you have shown a genuine attempt to mediate and negotiate as set out above. There are some exceptions such as where there has been family violence or child protection and safety concerns.
If you want to change the Consent Orders because you have significant concerns for the children’s safety and wellbeing then you should get legal advice before any mediation attempts as it may not be appropriate.
If there is no agreement during mediation
If there is no agreement during mediation or Family Dispute Resolution then you will be issued with a s60I certificate which then enables you to initiate Court proceedings to change the Consent Orders.
As mentioned, once you initiate Court proceedings you are inviting the Court to assess everything and you no longer have as much control of the negotiation - you may find that there are Orders made that you are unhappy with.
The Court will also need to be satisfied that there is a reasonable change in circumstances to consider changing your Consent Orders. What constitutes ‘reasonable change of circumstances’ will differ in every matter but may be things such as lapse of time (ie Consent Orders were made many years ago and are no longer appropriate) or the parties are now living a significant distance apart so the Orders are not practical.
If you have only recently had Consent Orders made and are then filing Court proceedings you will need to establish that it is in the best interest of the children to change them.
Final words: How to change consent orders
Remember that every family is unique and has their own nuances.
Just because a friend or family member (or your hairdresser!) had a particular experience in their family law matter does not meant that it is the correct approach for your family.
Rely on your friends and family members for emotional support and get legal advice from a solicitor where you can.
If you cannot afford a lawyer then remember that each State has it’s own Legal Aid service and also community legal services where you can seek specific legal advice if you want to change your Consent Orders.