Parenting Arrangements & Child Custody in Australia | Barwon CLS
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Parenting Arrangements

The content on this site is information only and is not legal advice. If you need legal advice please contact us.

What are family law parenting arrangements?

Parenting arrangements are the arrangements you make for your dependent children after your separation or divorce. Usually, you make the arrangements with your former partner or spouse.

Parenting arrangements are different from other family law issues, such as separation and divorce, child support and property settlement.

The law requires both you and your former partner to act in your children’s best interests. It’s assumed that both parents have an equal and shared responsibility for making decisions for  their children unless there are good reasons against this.

Parenting arrangements can include:

  • Parenting plans and Agreements
  • Court Orders

They can cover areas such as:

  • How the children spend time with each parent, including where they live
  • Medical needs
  • Education
  • Religious needs
  • Cultural needs
  • Communication between the parents
  • Financial responsibility (in addition to child support)
  • Making arrangements for grandparents and other significant people to have contact with the children
  • Making arrangements for interstate and overseas holidays

Some parenting plans include child support. But Child Support Services, also known as the Child Support Agency (CSA) can’t enforce these parenting plans unless there’s also a child support agreement registered with CSA.

If you have children aged in their mid-to-late teens, you’ll also need to remember that they may want a say in where they live and the time they spend with their other parent.

Parenting plans are agreements made between parents. However, they’re not enforceable in Court. If your former partner breaches the plan, you can’t use the Family Court system to enforce it.

If parents agree to the terms of their parenting plan being made into an enforceable document, they may register a Consent Order.

Consent Orders get their name from both parties consenting (or agreeing) that a Court will make an Order about something. Parents tell the Court they both agree to the Order being made.

The Court will make Consent Orders if it’s satisfied that:

  • The parenting plan is in the children’s best interests; and
  • Proper arrangements are in place to meet the children’s needs

When the parenting plan becomes a Consent Order, it means that it’s enforceable in Court. If either you or your former partner fails to follow any part of the plan, the other parent can apply to a Court for an Order to require compliance.

The advantage is that if there’s a breach of the Order, you can take action in the Family Court to get the issue sorted out. The Court has a good understanding of common problems and how best to resolve them. If the Orders are more than 12 months old, parents must use mediation to try and resolve the issues before going back to Court.

If you and your former partner can agree on parenting arrangements for your children, you may wish to make a parenting plan.

You can make a parenting plan without having to go to Court. It’s often the easiest and quickest way to make parenting arrangements, but it does require careful consideration of your circumstances and your children’s future needs. Mediation services are available to assist parents who can’t manage this on their own. Nearby centres include the Geelong Family Relationship Centre and Relationship Matters.

Parenting plans are:

  • Made by the parents of the child
  • Written or verbal agreements
  • Voluntary (meaning that no one can make you enter into a parenting plan)
  • Signed by both you and the other parent
  • Dated

Parenting plans can cover any parenting arrangements, including:

  • Both parents’ responsibilities
  • How the children will live their everyday lives
  • Any long-term arrangements

Because your parenting plan is an agreement, you can change it at any time, so long as you have the other parent’s agreement.

If your parenting plan allows for payments to be made to you, or if it requires you to make payments, you should notify Centrelink, as this may affect your Family Tax Benefit or child support payments.

Learn more

For more information, see the Parenting Plan brochure by Family Relationships Online.

Suri and Gemma’s parenting plan

Suri and Gemma have separated after living together for five years and being married for the past two years. They are the legal parents of their son, Max, who is three years old.

Max was born with spina bifida. As he gets older, he may require surgery, therapy and special equipment to help with mobility.

Suri and Gemma have discussed their living arrangements and how they will care for Max. They have agreed:

  • How Max will divide his time between both parents
  • Who is responsible for taking Max to his therapy sessions
  • Who will pay for Max’s other activities, for example, music classes
  • How they will divide Max’s education and medical expenses
  • That Suri will teach Max about his Indian heritage, and Gemma will teach Max about his British heritage

They don’t yet know how Max’s health, emotional needs and financial needs will change in the long-term, so they have agreed to make a parenting plan that outlines their agreement, and then they will make a new plan in three years when they understand more about Max’s needs.

If you and your former partner wish to make a parenting plan, there are some options, depending on your budget:

  • The Geelong Family Relationship Centre is a government-funded organisation which can help you make an agreement that works for you and your children
  • A private lawyer can tailor a plan to your circumstances, but you’ll have to pay legal fees
  • Relationships Australia offers a free workbook and a do-it-yourself parenting plan template

National Legal Aid Australia now has an online program called amica, which helps separated couples work out an agreement. If you use amica, you can provide details about your child, including age, schooling and special needs. It will use the information to work out a solution.

You and your former partner can use the draft solution as a starting point to make your parenting plan.

Amica isn’t for everyone, but if you and your former partner have good communication and get along well enough to negotiate and compromise, it may be a good option for you.

Amica’s services are available at no cost until the end of 2020. From 2021, fees will apply. It’s expected that fees will be less than $500.

Visit the amica website for more information.

We can give you advice about parenting arrangements, and can refer you to a private lawyer if you want a parenting plan drafted.

If you’re in the middle of separation or divorce, agreeing on parenting arrangements can be difficult. If you can’t agree on parenting arrangements, it will probably be impossible to make a parenting plan.

You may need some help to resolve these issues. Either you or your former partner can apply to a Court to make Orders about parenting arrangements. The Family Court of Australia and the Federal Circuit Court both hear applications for Parenting Orders.

However, before you make an application for Parenting Orders, family laws require you to attend family dispute resolution (FDR) with your former partner. The aim of FDR is to resolve the issues in dispute without having to take legal action.

FDR is similar to mediation because you and your former partner both meet with an independent FDR practitioner who will have experience in family law issues and is qualified to help you both find a solution.

The ultimate aim of FDR is to help you make a parenting plan. However, sometimes parties can’t agree, and  FDR is unsuccessful. In those circumstances, the FDR practitioner will give you a certificate which will allow you to apply to a Court to seek Parenting Orders.

In some circumstances, you’re not required to attend family dispute resolution (FDR), for example:

  • Urgency
  • Family violence
  • Child abuse
  • One of you can’t attend because you live too far away
  • One of you can’t attend because of serious illness or disability
  • You’re applying for <Consent Orders (link to section above: What are Consent Orders and how will they help me?)>

For more information, see Family Relationships Online’s brochure on FDR.

Greg and Stacey seek help

Greg and Stacey were de facto partners for ten years. Three months ago, they separated. They have two children: Jacinta aged nine, and Will aged six.

Since their separation, Greg and Stacey have struggled to agree on parenting arrangements for their children. In particular:

  • Where the children will live
  • How much time the children will spend with each parent
  • The most effective way of communicating with one another

Greg and Stacey usually end up arguing whenever they speak to one another. The situation is getting more and more stressful, and they are both aware that their children are also under stress.

Greg suggests family dispute resolution (FDR) to try and work things out. Stacey agrees but is concerned about the cost. They decide to split the fee, which is around two hundred dollars each.

At the FDR centre, Greg and Stacey meet with Mario, who is an independent FDR practitioner. Before they all meet in the same room, they each have a chance to speak privately with Mario.

The private conversations help Mario understand the issues. Greg and Stacey both feel supported because they have voiced their concerns and what they think is best for their children.

Next, Mario meets with Greg and Stacey together. Mario outlines all the issues and pinpoints why there are problems. He uses his family law experience to explore some options with Greg and Stacey. He also helps Greg and Stacey focus on what’s best for their children.

While in FDR, they work on a parenting plan and agree to review it in 12 months.

What happens if I apply to Court for Parenting Orders?

Parenting Orders are Court Orders that must be followed by both parents. Parenting Orders can be about any combination of things that affect children, including:

  • Where the children will live
  • How much time the children will spend with each parent and other significant people in their lives, for example, grandparents
  • Communication arrangements
  • Any other issues affecting the children

To apply for Parenting Orders, you must file an application in the Family Court of Australia or the Federal Circuit Court. Speak to us for advice about which Court would be the appropriate choice for you.

For information about how to file your application, as well as filing fees, see the Family Court’s website page on Parenting Orders.

In some circumstances, Victoria Legal Aid will fund your Parenting Orders case. This means you get free legal help and representation. However, funding is limited, and you must make an application to Victoria Legal Aid. Whether your application is successful will depend on your income and assets, and whether there’s a reasonable chance that the Court will grant your application. People who can fund their own applications are expected to do so.  Some private law firms will make the application for you.

For more information, see Victoria Legal Aid’s Application form for a grant of legal assistance.

Once this process starts, the Court moves towards setting a trial date. It holds minor hearings along the way to check on progress. It makes Orders about what documents each party must disclose. It also deals with any proposed witnesses, and any other issues. This period can last for a long time. It can take months, or even years, for an application to go to trial. 

Typical steps in a court process

  • Mediation – to attempt settling the matter without further legal action
  • Court application – usually filed by one party when mediation hasn’t resolved the issues
  • First mention – a hearing at which the Court gives directions about the next steps and makes temporary (interim) orders for the care of the children while the Court proceedings are ongoing
  • Conciliation conference – similar to mediation. The parties meet with a conciliator to explore solutions
  • Interlocutory hearings – hearings at which the Court deals with specific issues in the lead-up to the trial, for example:
    • Family report – an independent assessment of all the issues which can be used by the Court to make a decision
    • Appointment of an Independent Children’s Lawyer – to represent your child’s best interests (if there’s a concern about the child’s welfare)
    • Screening tests – for example drug and alcohol testing
    • Any other information required by the Court
  • Final hearing – for the Court to finally decide the case and make Orders

At every stage of the process, both parties have the opportunity to negotiate a resolution.

Trials are also known as final hearings.

Often, trials are time-consuming and expensive, especially if you’re paying legal fees to a private lawyer. For these reasons, the family law system encourages couples to agree on parenting arrangements.

At trial, the Court will consider evidence from:

  • You,
  • Your former partner
  • Experts
  • Other interested parties (for example, grandparents, other family members, and friends)

The Court considers anything you have to say about the arrangements you want, and why. These types of statements are known as your submissions. It will also consider similar submissions from your former partner.

The Court must also consider:

  • What Orders are in the best interests of your children
  • That both parents should have equal shared parental responsibility (meaning that both parents share major decision-making responsibilities for the children). Sometimes, there are good reasons why equal shared responsibility isn’t appropriate, for example, family violence
  • Whether the children can spend equal amounts of time with both parents. If this isn’t possible or it isn’t the best thing for the children, the Court will often try to make Orders for the children to spend substantial and significant time with the non-residential parent.  This generally includes time on weekends, weekdays and school holidays. It allows the non residential parent to be involved in special occasions, school activities and milestone events such as children’s birthdays

The Court makes a decision and makes Parenting Orders. You may need to wait weeks or months for the decision, depending on the Court’s workload.

You’re legally required to follow the Court Orders. Your former partner (and any other person affected by the Orders) is also legally required to follow the Orders.

Like other parenting arrangements, Parenting Orders can be made about a range of things, including:

  • How the children spend time with each parent, including where they live
  • Medical needs
  • Education
  • Religious needs
  • Cultural needs
  • Communication between the parents
  • Financial responsibility (in addition to child support)
  • Arrangements for grandparents and other significant people to have contact with the children

Parenting Orders expire (finish) when your child turns 18 years old unless there are special circumstances, for example, a physical or mental disability to consider.

In some circumstances:

  1. A Parenting Order includes an Order for the regular payment of child support; and
  2. The receiving parent wants the Child Support Agency (CSA) to collect the money on their behalf from the paying parent

When this happens, the receiving parent should register the Court Order with CSA within 14 days of the Order being made.

For more information, visit the Federal Circuit Court’s parenting information page.

All children must be safe and protected from harm. If your child is refusing to spend time with the other parent and you believe it’s because of physical, sexual or psychological abuse, you need to report the issue to the police immediately and seek legal help.

You can make an appointment to see us. We’ll help you work out where best to get legal assistance.

There may be other reasons why your child doesn’t want to spend time with the other parent. For example:

  • They have anxiety about something
  • They don’t like the parent’s new partner
  • They feel that the other parent is too busy to spend time with them

If this happens, you first need to speak to your child to find out what’s troubling them. Try to be respectful of the other parent when talking to your child. Then talk to the other parent to try and sort out the issue.

Remember that you have a duty to encourage your child to spend time with their other parent, and if there’s a Court Order in place, you must do everything reasonable to follow the Court Orders.

Older children, especially older teenagers, may want to take charge of when they see the other parent. This can be very difficult to manage, especially if there are parenting plans or Court Orders.

If visiting the other parent becomes an ongoing issue, you may need to attend family dispute resolution or seek legal advice. 

It may be that the parenting plan needs to be changed, or you need new Court Orders. Remember that these things can only happen with the other parent’s consent. If they don’t consent, you may need to consider whether to apply to a Court for new or updated Parenting Orders. This type of application may lead to a trial unless you can reach an agreement along the way. Usually, however, Courts are reluctant to change existing Parenting Orders.  If the Orders are more than 12 months old, you and the other parent must attend Family Dispute Resolution before applying to the Court.

Parenting Orders usually expire when the child turns 18 years old unless there are reasons for the Orders to continue (for example, the child has a disability and needs ongoing support).

This means that for most children, they can make their own decisions once they turn 18.

However, Courts may take into account the views of a younger child, depending on their level of maturity. The Court may require a psychologist’s report to establish if the child is mature enough to decide whether they want to see the other parent, and whether they understand the possible consequences of their decision.

We recommend you seek legal advice if your child has decided they don’t want to see the other parent. We can help you with advice, and refer you to a lawyer who can assist you to work through these issues.

When making Parenting Orders, a Court will look at what’s in your children’s best interests. Unless there are good reasons to decide otherwise, a Court will aim to allow children to spend substantial and significant time with both parents.

The Court will look at all the child’s circumstances to decide what’s reasonable. For example, it’s not reasonable to order that the child spends every other week living with one parent when that parent is a fly-in-fly-out worker who is away for two weeks out of every three. Similarly, it is not reasonable for a breast feeding child to spend substantial overnight time with the other parent.

If there’s family violence, sexual abuse, severe drug abuse or some other situation that is dangerous to your child, a Court may make Orders that the parent shouldn’t have access or contact with a child.

If you’re concerned about whether a Court will take your kids away, contact us to make an appointment, or get in touch with Victoria Legal Aid or a private lawyer.

If you have Parenting Orders, that aren’t being followed, you can apply to the Court to take action.  In these circumstances the Court has the power to:

  • Make an Order requiring the other parent to comply
  • Make changes to the terms of the original Parenting Orders
  • Fine the parent who is not complying
  • Imprison parents who consistently and systematically fail to comply with the Parenting Orders despite receiving warnings from the Court.

The Court may also order that the other parent pay your legal costs.

In some circumstances, you may be able to use family dispute resolution to work out the issues. For example, the breach may happen because the other parent’s change in circumstances makes it impossible to drop off your children at a particular time or place. In these circumstances, you may need to adjust your parenting plan or ask the Court to make <Consent Orders (link to What are consent orders and how will they help me? section)>.

If you have a parenting plan but no Consent Orders, and the other parent isn’t following them, you need to go back through the dispute resolution process. If this is unsuccessful, you will be issued with a certificate and you may need to consider getting Parenting Orders. You’ll need legal advice to find out what’s involved.

If you’re concerned about a breach of Court Orders, seek urgent legal advice about what to do next. Contact us to make an appointment, or get in touch with Victoria Legal Aid or a private lawyer.

If you believe your children are in danger, contact the Police immediately.

If the other parent hasn’t returned your children, you may need to apply for a Recovery Order. You can apply even if you don’t have other Court Orders in place.

You should seek urgent legal advice. Get in touch with us to make an appointment, or contact Victoria Legal Aid.

If you believe your children are in danger, contact the Victorian police immediately.

If you believe your former partner may take your children out of Australia, this may be an abduction. Contact the Federal Police immediately

You may need to make new parenting arrangements if you’re planning on moving a significant distance away from your current home.

The two key considerations are:

  • Whether the move will disrupt the children’s lives
  • Whether the move will affect the children’s right to have a meaningful relationship with the other parent

For example, if you move to a street nearby, your parenting arrangements are unlikely to be affected because the children can continue with their normal lives. They can go to the same school, participate in the same activities, and their time with the other parent isn’t disrupted.

However, moving away a significant distance is more complicated. For example, moving:

  • Interstate
  • From a metropolitan area to a regional area
  • Overseas

If the children need to change schools, make new friends and start their lives in a new place, you’ve moved a significant distance. Also, the move may mean that the arrangements that you have with your partner about how your children divide their time will no longer work.

If you have a parenting plan and no Parenting Orders, you should try to negotiate with the other parent to change the parenting plan.  You may then wish to formalise your agreement with Consent Orders.

If you have existing Parenting Orders and you want to move, but the other parent won’t consent, you must apply to the Court to have your Parenting Orders amended. You must do this before you move. If you don’t, the other parent may apply for a Recovery Order. This may require the children to return to their original town until the Court has considered whether moving is in their best interests.

As a starting point, you need to discuss the situation with your former partner. Once you know how they feel about the proposal, you may need legal advice to work out what to do next. Get in touch with us to make an appointment, or contact Victoria Legal Aid or a private lawyer.

Even during the challenges of the COVID-19 pandemic, parents are expected to cooperate to allow children to spend meaningful time with each parent.

The restrictions and lockdowns are not an opportunity for parents to breach parenting plans or Court Orders.

Victorian restrictions may allow you to have changeover (of your children) unless there is a threat to the health and safety of the child. If you have a changeover at an agreed location that has been shut down, you may need to negotiate a new location.

For interstate changeovers, you will need to check the laws of that State or Territory.

Where changeover isn’t possible, use other means to help your child spend time with the other parent, for example, video conferencing and phone calls.

If you feel there is no choice but to breach Court Orders to protect the health and safety of your child, you need to seek urgent legal advice.

 

For free advice, get in touch with us, or contact Victoria Legal Aid.

In parenting matters, Australian family law is concerned with ensuring the wellbeing of children. If there is family violence, the way that laws apply to parenting arrangements may differ. For example:

  • You may not be required to attend family dispute resolution
  • Your child would be in danger if they spent time with that parent.

You may not have to make parenting arrangements, especially if you have a <Family Violence Intervention Order (link to page)>. Alternatively, the Court may order that the child can spend time with the other parent, but only under close supervision.

If you receive a letter from a lawyer acting on behalf of the other parent, you should seek urgent Family Law advice.

If you have experienced family violence, contact us for advice.

How we can help

We provide advice for family law parenting issues. We can’t represent you in Court or draft parenting plans. In some circumstances of family violence, we may take on limited casework. We can, however, refer you to other legal services for legal representation. If you’re eligible, some of these services may be free or low-cost.

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Last modified on December 2nd, 2020 at 10:11 am

The content on this site is information only and is not legal advice. If you need legal advice please contact us.