How are arrangements for children made after separation?

All families are different. When considering what parenting arrangements should be made after separation, it is important to make sure the arrangements are safe, in your children’s best interests and practical.

There are a number of ways that arrangements are made for children after parents separate. If parents can reach an agreement, they can leave it as an unwritten, informal arrangement. This can work for parents who are easily able to communicate with each other and trust that the other person will follow the agreement.

Parenting arrangements are generally in the form of:

• Unwritten, informal arrangements.
• A written parenting plan.
• A consent order approved by the court with the agreement of both parties.
• A parenting order made by the court (generally made if you can’t reach an agreement).

What can be included in a parenting arrangement?

Parenting arrangements can cover a wide range of issues including, but not limited to:

• Where a child lives.
• Whom the child spends time with.
• How the child will communicate with each parent and other significant people.
• Where the child will attend school or childcare.
• Medical or health issues.
• Religious or cultural practices.
• Who has ‘parental responsibility’ for the child with respect to deciding major long-term issues for your child (for example, their education, name, health, cultural or religious upbringing, living arrangements).
• How parents will communicate with each other.

What is a parenting plan?

A parenting plan is a written agreement between the parents that sets out the care arrangements for their children.

A parenting plan is an informal way of agreeing on parenting arrangements. You should not feel pressured by the other parent to agree to any terms that you are not comfortable with.

Parenting plans do not need to be in a specific form or witnessed. However, they must be signed and dated. It is best to get legal advice prior to making a parenting plan.

An advantage of a parenting plan is that it can be changed at any time, provided both parents agree. This is done by making a new parenting plan which is signed and dated.  For example, you may decide to make a new parenting plan if the needs or routines of your children change.

Unlike a court order, a parenting plan is not legally enforceable, and you cannot force the other parent to follow the parenting plan. If the other parent is not following the parenting plan, it is important to get legal advice about your options.

Some other issues to be aware of before agreeing to a parenting plan:

• If you apply to the court for a parenting order after you have already made a parenting plan, the court does not have to follow the terms of your parenting plan, but it will consider it when deciding what kind of parenting orders to make.
• If you already have a parenting order or a consent order, a parenting plan made after the order will vary the terms of the original order. That is, the terms of the original order will no longer be legally enforceable. The only exception to this is if your original order states that it cannot be varied by a parenting plan or otherwise. If you are considering varying a parenting order or a consent order, you should always get legal advice first.

What is a consent order?

You can make your parenting agreement legally binding by applying to the court for a consent order.

To do this, you need to fill in a court form called an “Application for Consent Order” and attach a copy of your proposed parenting arrangement.

The application and draft orders must be signed, dated and witnessed by an appropriate witness (for example, a Justice of the Peace or a lawyer). You don’t need a lawyer to apply for consent orders, but you should get legal advice to ensure that your consent order is safe, fair and workable before filing it as it will affect your future rights. It is a good idea to have a lawyer review your draft orders as the wording of a consent order needs to be specific enough so it can be enforced by the court if a parent breaches the order.

Once the consent order is filed with the court, the court will consider if the orders you propose are in the children’s best interests. If the court approves the arrangements, it becomes a court order known as a ‘consent order’ (or a ‘parenting order’). A consent order has the same effect as if the parties went to court and a judge made the order.

There is a cost to file a consent order application and you can speak to the court registry to determine the cost prior to filing. You may be eligible for a waiver of the fee, for example, if you hold a concession card.

It is important to get legal advice before entering into consent orders as they can only be changed if both parents agree. This is done by entering further consent orders, a parenting plan or a parenting order.

If parents cannot agree to change a consent order, one parent will have to apply to the court to change the agreement. It can be difficult to get the court to change a consent order unless circumstances have changed significantly since the consent order was made. You should get legal advice if you want to change a consent order before applying to the court.

Is it better for me to enter into a parenting plan or a consent order?

If you have concerns that your ex-partner may not stick to the agreement that you have made, you should consider entering into consent orders rather than a parenting plan. Every circumstance is different and you should get legal advice before signing a consent order.

What if we can’t agree on any parenting arrangements or it is not safe to negotiate with the other parent?

If you can’t agree or it is not safe to negotiate with the other parent, you can apply to the court for a parenting order.

There are certain steps that parents need to take before going to court. These are called the ‘pre-action procedures.’ For example, parties are expected to try and reach an agreement by attending a family dispute resolution, making a written offer to settle your disagreement and notifying the other parent in writing that you intend to apply to a court. You do not have to take these steps if it is not safe for you or your children, but you should get legal advice first.

What is a parenting order?

A parenting order is made by the court. The court will decide the parenting arrangements for your children and your ‘parental responsibilities.’

In deciding what kind of parenting order to make, the court must follow the factors and principles set out in the Family Law Act. This is set out in our fact sheet titled “What the court considers when making a parenting order for you children”.

A parenting order is legally binding and enforceable. There can be serious consequences if a parenting order is not followed.

Do I need legal advice?

It is a good idea to get legal advice so that you are aware of your rights and responsibilities before agreeing to any parenting arrangements. You may need legal advice if:

• You or your children are unsafe or are at risk of harm (for example, there are risks related to family violence or because of drug or alcohol misuse).
• You and the other parent cannot agree about parenting arrangements.
• You are thinking about signing a parenting plan or consent orders.
• You want to ask the court to make a parenting order (or the other parent has already applied to the court).
• You have an existing parenting plan or order that you want to make changes to.
• You have signed a parenting plan or consent order you did not agree with and felt pressured, threatened or intimated to accept.

When making decisions about children, the court considers many different factors which are set out in the Family Law Act. These factors are useful guidelines for you to consider whether you try to reach an agreement privately or if you go to court.

Terms you may hear

Person who the child lives with: An order about where a child will live has been known by various terms including ‘custody or residence orders’. Both of those terms are no longer used, and the phrase ‘a person who the child lives with’ is the term currently used.

Person who the child spends time with or communicates with: An order about the time a child spends with the parent they do not live with used to be known as a ‘contact order’. The term contact order is no longer used and there are now two terms used instead.

The first is ‘a person who the child spends time with’, which means the child physically being with that person at certain times. The other term is ‘a person who the child communicates with’ and covers phone, letter, e-mail, SMS and other types of communication.

Equal shared parental responsibility: When making parenting orders, the court will presume that it is in a child’s best interests that parents equally share parental responsibility in relation to making major long-term decisions for their child. This may not apply if there is evidence of child abuse or family violence.

The child’s best interests: When making a parenting order, the court must consider what is in the best interests of the child. It will do this by looking at primary factors and additional other considerations.

What are the primary factors in considering a child’s best interests?

The primary factors a court must consider are:

• Whether the child will benefit from having a meaningful relationship with both of their parents.
• The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or violence.

When weighing up these two considerations the court is required to give greater weight to the protection of a child.

What are the additional factors in considering a child’s best interests?

Additional factors a court must then consider include:

• The views of the child. How much weight is given to the child’s views will depend on the age of the child and their level of maturity as determined by the court. There is no set age when a child can decide where they will live or how much time they will have with the other parent. It is unlikely that the views of a young child will have weight on the decision of a court.
  The court doesn’t usually hear directly from children and children do not usually attend court. Children’s views are typically made known to the court in a family report or through an independent children’s lawyer.
• The nature of the relationship the child has with each parent and with other significant people, such as grandparents or other relatives.
• The extent to which each of the parents have fulfilled, or not fulfilled, their responsibilities as a parent, in particular whether they have taken, or not taken, the opportunity to participate in making decisions about long term issues about the child, spending time with the child and communicating with the child.
• The extent to which each of the parents has fulfilled, or not fulfilled, their obligation to maintain the child (e.g. paying child support).
• The likely effects of any changes in the child’s circumstances including the potential effects on the child if separated from either parent, other children, or other people in the household where the child has been living. This is particularly relevant if the child is very young.
• The practical issues, such as distance and expense, involved in the child spending time and communicating with a parent and whether those difficulties would affect the child’s right to have regular, direct contact with both parents.
• How well each parent is able to look after the child and provide for the child, including the child’s emotional and intellectual needs.
• The maturity, sex, lifestyle and background (including cultural issues) of the child and the child’s parents and any other characteristics of the child the court thinks are relevant.
• If the child is Aboriginal or Torres Strait Islander, the child’s right to enjoy their culture and the likely impact any proposed parenting order will have on that right.
• Each parent’s attitude to the child and their responsibilities as a parent.
• Whether there has been any family violence involving the child or members of the child’s family. This includes whether the child has been exposed to any family violence, either directly or indirectly. If a family violence order is in operation the court will look carefully at the order and consider the circumstances in which the order was made, any evidence admitted in proceedings and any findings made by a court in the family violence proceedings.
• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

The court will particularly look at what has happened since the parties separated.

What is equal shared parental responsibility?

When making parenting orders, the court applies a presumption that it is in your children’s best interests for parents to have equal shared parental responsibility.

This does not automatically equate to a presumption that it is in your children’s best interests for the children to have equal time with each parent, however equal time must be considered. This is explained further below.

The presumption of equal shared parental responsibility will not apply if sufficient evidence is provided to the court to establish that there has been:

• Family violence; or
• Child abuse by one of the parents (or a person who lives with the parent); or
• That it is not in the child’s best interests.

Orders for only one parent to have parental responsibility are not common. Where parental responsibility is shared by parents, there is a duty for parents to consult with each other and make a genuine effort to reach agreement on all major long-term issues. This includes making decisions about issues for the children’s:

• Education.
• Religious and cultural upbringing.
• Health.
• Name.
• Living arrangements.

It does not include day-to-day issues about the child (such as what a child should eat, wear or do while with a parent) as those decisions are the responsibility of the parent the child is with.

How much time should a child spend with a parent?

If the court decides parents have equal shared parental responsibility, the court must consider whether it is in the child’s best interests and ‘reasonably practicable’ to spend equal time, or substantial and significant time, with each parent.

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the child’s daily routine. It includes spending time with the child at special events such as birthdays and school events.

When deciding whether an arrangement is reasonably practical, the court will look at:

• How far apart the parents live from each other.
• The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time.
• The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.
• The impact that an arrangement of that kind would have on the child.
• Such other matters as the court considers relevant.

If neither equal time or substantial and significant time is appropriate, the court will go on to make an order that it determines is in the child’s best interests.

There are no hard and fast rules in the Family Law Act about how much time a child should spend with each parent. This will vary with each family and each family’s circumstances. The court must first look at what is in the child’s best interests and what is reasonably practical.

What if there has been family violence or child abuse?

You must tell the court if there has been (or there is a risk of) family violence or child abuse.

You must also tell the court if a child (or another member of the child’s family) is under the care of, or being investigated by, a State or Territory welfare authority (commonly known as the Department of Child Safety).

Where there has been family violence or child abuse, the court can make orders to protect your child. For example, it may not make a parenting order until it conducts further investigations or obtains a report or records from the police or welfare authority.

If the court considers a child may be at risk in a parent’s care because of family violence, child abuse or in other circumstances such as drug or alcohol misuse, the court may make some temporary orders for the child to spend time or communicate with that parent under supervision. This means that when a visit takes place, another person must be present. The order will usually specify who will supervise and where the visit will take place. These orders are usually only made for a limited period of time.

You should obtain legal advice if you think it may be necessary in your case. The person supervising visits can be someone you know and trust, or you can use a contact centre which is a service set up to provide supervision.