Parenting Plans, Parenting Orders and Consent Orders
- Stokes Lawyers
- Sep 24
- 4 min read
What are they and do I need one?
Separation can be difficult, and throwing children into the mix makes things much harder. Whether you and your ex-partner are amicable, uneasy or barely speaking, there are documents that can help the both of you work together for the benefit of your children.
Parenting Plans
Simply put Parenting Plans are just that, a plan. You and your ex-partner may have come up with them on your own, or you may have had the help of a third party such as a friend or mediator.
Parenting Plans are often simple without any legal jargon and once signed are an agreement between you and your ex-partner on what you have decided to do in terms of your children’s care.
A Parenting Plan can be a great low-cost option to get you and your ex-partner on the same page, but because it is not a sealed court document it is not legally enforceable if either party decides not to follow it.
Parenting Plans after an Order
It is important to remember that even though parenting plans are not a court document, if you enter into one after receiving Consent Orders or Parenting Orders the Parenting Plan is able to modify your obligations.
Court Orders
If you want a document that can be enforceable by the Court there are two options, a Parenting Order or a Consent Order.
Consent Orders
If you and your ex-partner are able to come to an agreement about the care of your child, but you want a legally binding document, a Consent Order is a great option.
Consent Orders can be drafted by you; however, it is a good idea to have a lawyer look over any Order you are intending on signing to ensure it will be approved by the Court and that it does not unnecessarily disadvantage you.
Parenting Orders
When parents are unable to come to an agreement about what Orders they want in place the Court steps in to make the decisions for them – this is a Parenting Order.
Parenting Orders are often more expensive as the matter will need to go to trial before a decision is made by the Judge.
It is also important to remember that when a Judge is making the decision, it is based on the best interests of the child. This might mean that both parents end up unhappy with the orders given by the Judge.
What do I do now?
It is always important to remember that despite how you may be feeling about your ex-partner the children’s needs should always come first.
Before making any decisions, consulting a lawyer about your legal rights and obligations is a great idea. Seeking help early can set you on the right path and save money in unnecessary court fees down the track.
Mediation
Prior to lodging an application with the Court you must have attended, or attempted mediation with a Registered Family Dispute Resolution Practitioner.
Obligations to creditors
It is the responsibility of the executor to pay the lawful debts of the deceased. Creditors of an estate paid out of the assets of the estate. Failure to pay creditors may in some circumstances result in liable for payment of those debts.
Executors Commission
Executors may be eligible for commission for carrying out their duties to the estate. For individuals not acting in a professional capacity, the commission is usually determined in terms of a percentage of the capital and income of the estate. However, the Court cn determines the amount of remuneration that applies taking into account the amount of work the executor has done and the circumstances. A deceased’s Will may also outline how much an executor is to receive for executor’s services.
Avoid conflict of interest
Often executors are also beneficiaries or in some instances creditors to an estate. While this may appear to be a conflict of interest, most courts are generally reluctant to interfere with the will maker’s decision to nominate an executor; as such a perceived conflict would have been obvious and known by the testator when the will was made.
Acting in the role before obtaining a grant
The entitlement of executors to act derives from a will, which is confirmed by the Court when it makes a grant. This entitlement commences from the date of death, however if there is no will, the entitlement commences from the date of when a Court grants letters of administration.
Removal of executor
In the event that an executor loses their position of power whether from mental incapacity; injury or is convicted of a crime, a court will assist with the administration of a deceased estate.
A Court may also revoke a grant of probate and instead provide instructions for the administration of an estate under civil procedure rules. Revocation usually occurs if there are instances of fraud, mistake, or where administration of the estate is in jeopardy.
Timeframes
The executor administers the estate and distributes the assets within a reasonable period of time, usually considered to be within a year.
An executor may be called upon to explain and justify the delay if the administration surpasses a year.
Conclusion
Accepting the role of executor brings great powers and responsibility to a family estate. There are burdens and risks involved and an individual can renounce the role before a grant is issued. While the executor’s role is to administer the deceased’s wishes, there is significant capacity for him or her to affect the position of the beneficiaries and vice versa for a long time.
For more information contact us on 07 3439 8874 or admin@menslegalservice.org.au or
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This document is general information only. Specialist legal advice will help determine whether these issues apply in your circumstances.
Men’s Legal Service is a not-for profit law firm making pragmatic, cost-effective legal services available to men at turning points in the lives of them and their families. |
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