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Parenting Arrangements

When parents separate, it is natural and normal to worry about what is going to be best for your children. It might be a relief to know the Family Law Act requires the arrangements that are put in place for the care of children when their parents separate to be safe, practical and in their best interests.

In fact, the general overview of the Family Law Act is that it is considered to be best for children to have an ongoing relationship with both of their parents, unless it isn’t safe for them. There is also a legal presumption of equal and shared responsibilities for the decisions relating to the long-term care of children.

What is a parenting arrangement?

Parenting arrangements are the practical parts of taking care of children by separated parents. This can include how decisions are going to be made (called parental responsibility), with whom children are going to live, how children are to spend time and communicate with a parent they aren’t living with, and any other issues particular for each family (which might include schooling, travel or medical treatment).

There are informal and formal options available for parenting arrangements.

It is important that you make a note of the date that you separated as there are time limits that are calculated from that date.

The common things to think about for your children are likely to be things like:

  • What is going to be their usual week to week, fortnight to fortnight routine?
  • What is going to happen on school holidays?
  • What is going to happen on special days (birthdays, Mother’s Day, Father’s Day, Easter, Christmas)?
  • How are the children going to get from one parent’s care to another (changeover arrangements)?
  • How are you as parents going to communicate with each other about the children?
  • Are there any other specific things to be arranged for your children?

What do we need to do if we agree on our Parenting Arrangements?

It isn’t mandatory to do any paperwork about your parenting arrangements, as long as you and your former partner agree on what is happening with the children.

If you would prefer to see your agreement in writing, then an informal agreement is called a Parenting Plan. There is no particular form or style requirements for a Parenting Plan, other than it is to be signed by both parents. There are no legal penalties that apply if either one of you don’t follow that Plan.

If you prefer or require the formality and enforceability of a Court Order and you have an agreement with your former partner, then you can apply to the Court using a paperwork only application for Consent Orders. That begins by preparing an Application for Consent Orders and preparing your draft Orders.

If you do not have an agreement, then you will need to move through the formal Dispute Resolution processes required by the Family Law Act.

Parent holding a child's hand
Divorced parents arguing while child sits upset

What happens if we can’t agree on our Parenting Arrangements?

The Family Law Act requires all families to try and come to agreements about their parenting arrangements, provided it is safe for them to do so. If you haven’t been able to do that directly between yourselves, then the next step is to try mediation, which is also referred to as Family Dispute Resolution. The Federal Government has funded Family Relationship Centres around Australia to provide mediation services to families. There are also private Family Dispute Resolution Practitioners who can offer mediation as well.

You cannot apply to the Court for parenting orders until you have completed the Pre-Action Procedures which include obtaining a certificate from a mediator (Family Dispute Resolution Practitioner) confirming that you have attempted mediation.

When you apply to the Court, the Judge has authority to make the Orders they determine are in the best interests of the children, and they don’t have to choose between your proposal and the proposal of the other parent.

How do Courts decide Parenting Orders?

There are many considerations that the Court will use to determine the best resolution for the care of children in a divorce.

The primary considerations are:

  1. the benefit to the child of having a meaningful relationship with both of their parents
  2. the need to protect the child from harm (physical or psychological).

The Court will also take into account

  • Views and preferences expressed by the children
  • The ability of each parent to meet the child’s needs
  • The nature of the relationship with each parent (and possibly extended family)
  • The effect a change in circumstances will have on the child
  • The logistics of the child spending time with each parent
  • The parents’ attitudes towards the child and the responsibilities of parenting
  • Any other considerations the Court deems relevant.
Woman applying for a divorce, holding her wedding ring

Frequently Asked Questions About Parenting Arrangements

Do we have to do week-about?

There is no requirement to do any particular parenting arrangement or care routine. It is important to consider what is in your children’s best interests, and what will work well for them. That might be week-about care, it could be that the children live mainly with one parent and spend regular time with the other parent, or it could be something more fluid and flexible.

At what age can our children decide?

There is no age at which the responsibility to make decisions about the living or visiting arangements for children moves to them. The legal framework is that those decisions are to be made by parents and not by children (or young people). However, the views and wishes of children are to be taken into account as part of the combination of factors about what is in their best interests, with the maturity of the children relevant to help the Court determine the weight to be given to those wishes.

Can our children come to mediation or Court to explain what they want?

The answer to that question is no. The Court does not allow children to attend, sign statements or directly be involved in the Court process. If a child has wishes that are relevant to the case, then the Court get that information through a child consultant or child expert who is appropriately qualified to have those discussions. Similarly, children don’t attend mediation. However, there is a specialised form of mediation called Child Inclusive Mediation which includes a Child Consultant meeting the children and then providing feedback to the parents not just about what the children said but also information about children, their emotional needs and common developmental stages.

If I have a Domestic Violence Order does that mean I can't see the children?

This is an area that needs specific advice, as some domestic violence orders are prepared in such a way to still allow for contact arrangements with children to happen easily, and others can prevent that from happening. It is very important to carefully review your DVO and your parenting arrangements to ensure they can work together.

Taking the first step can be challenging, particularly if you are not sure if you even need legal advice or assistance. We’re happy to help you get clear about those things.

We offer a free 30-minute phone consultation, during which we ask key questions, share information and recommend a strategy as you move forward.