Parenting Arrangements

When couples separate, the two main areas that usually need to be addressed are the division of their assets and liabilities (known as a ‘Property Settlement’) and the care arrangements for their children (known as ‘Parenting Arrangements’).

Parenting Arrangements can cover all issues associated with the care, welfare and development of the children of separated couples.

These issues range from where the children are going to live, the time they will spend with each parent, how the parents make decisions regarding the children and general issues related to things such as education, medical and travel.

Parenting Arrangements can range in formality from a verbal ‘handshake agreement’ between two parents, through to a written agreement drafted by the parents, through to a more formal ‘Parenting Plan’ which is drafted with the assistance of mediators or solicitors, through to a formal legally binding Parenting Court Order made in accordance with the Family Law Act 1975.

Of the above options, only the Parenting Court Order is legally binding.

All of the other forms of agreement are not legally binding and cannot be enforced by the Courts or law enforcement.

A Parenting Court Order can be obtained by way of agreement between the parents (also known as a ‘Consent Order’), or when parties cannot agree, the matter can be determined by a Judge in the Family Court and a Parenting Court Order can ultimately be imposed on the parties.

Separate couples can first seek to negotiate parenting arrangements directly between themselves.

However, if they feel that an independent third party might assist in the negotiations, then they can attend ‘Family Dispute Resolution Mediation’ at organisations such as the Family Relationship Centre and Relationships Australia.

If family dispute resolution mediation is not successful, then it may become necessary for one or both of the parties to engage family lawyers to assist with the negotiations.

Family lawyers can negotiate with the other parent or their lawyer by way of letters/emails, telephone calls, or through a further mediation process.

What is in the ‘best interests of the child’ should always be the primary consideration when negotiating parenting arrangements.

It is also the primary factor that the Family Court consider when deciding on appropriate parenting arrangements.

The primary thing to be considered/negotiated is usually the issue of which parent the children will reside with primarily, and the times that they will reside/spend time with the other parent (or whether it will be an equal ‘shared care’ arrangement).

This is relevant for both the time during the school term and school holiday time.

The age and maturity of the children are highly relevant to determining this issue.

For example, it is generally considered appropriate that very young children spend shorter and more frequent visits with the non-primary parent, and that these visits become longer (including overnight and then consecutive overnight time) as the children get older.

Issues such as the travel distance between the parents’ respective homes, and the children’s school, and the delivery and collection (known as ‘changeover’) times and locations need to be carefully considered.

General issues such as how the parents will communicate and come to decisions, which school the children will attend, and medical and travel issues all need to be considered.

Informal parenting arrangements such as ‘handshake agreements’ and even Parenting Plans are not legally binding, and can therefore be altered with the agreement of both parties (and in fact, some parents may seek to unilaterally change the arrangements).

However, Parenting Court Orders can only be altered with the agreement of both parties (with the alteration being approved by the Court), or if an agreement cannot be reached, then one party may seek to take the matter back to the Family Court to alter the arrangements.

However, the matter can only be returned to the Family Court if there has been a ‘significant change in circumstances’ that has arisen since the making of the original Court Order.

If the family layers are unable to negotiate an agreement between the separated couples as to parenting arrangements, then it may become necessary for proceedings to be issued in the Family Court.

However, before proceedings can be issued in the Family Court, the parties need to know that they have attempted family dispute resolution mediation at an organisation such as The Family Relationship Centre or Relationships Australia and they have obtained a certificate confirming this.

Through the Family Court process, certain reports may be prepared by professionals to advise the Courts as to the best arrangements for the children, and the parties will also be given numerous opportunities to agree on arrangements throughout the lengthy Court process.

However, in the rare occasions that parents still cannot agree on parenting arrangements throughout the months-long Court process, then the matter will proceed to a final hearing (known as a trial) where the Judge will ultimately make a decision to impose Parenting Orders.