Parenting Arrangements
Every child deserves to live a happy and fulfilling life, regardless of the marital status of their parents. When you and your partner separate but share children, it is important that parenting arrangements are enacted and followed to provide the best possible care for the children involved. While custody of children is typically shared, every situation is different based on the potential risks a parent may pose to their child. A parenting orders lawyer represents you during these matters, helping to shape parenting arrangements that benefit both you and your children.
At Skene Lawyers, we specialise in family law services and are committed to fighting on your behalf when it comes to parenting arrangements. We accept nothing less than perfection and aren’t happy until you’re happy. We understand how stressful separation can be, especially when children are involved, which is why your dedicated parenting orders lawyer is always on hand to answer your queries and concerns immediately.
As a premier Brisbane law firm, we are experts in matters relating to family law, domestic violence, criminal law, traffic offences, and more. Give us a call on 0431 336 999, send an email to amanda@skenelawyers.com, or fill out our contact form to reach out and begin speaking to a parenting orders lawyer.
Children Matters
- The Family Law Act
- Equal Shared Parental Responsibility
- Does The Court Require Children To Have Equal Time With Both Parents?
- Advantages Of Equal Shared Care Arrangements
- The Disadvantages Of Equal Shared Care Arrangements
- Substantial And Significant Time
- How The Courts Assess Substantial And Significant Time
- Reasonably Practicable
- What If There Are No Orders? Who Can Take The Children?
- Relocation – Can I Move Interstate With The Children?
- Do We Have To Go To Court For Parenting Arrangements?
- How To Decide Who Spends What Time With The Children?
- What If My Partner Does Not Want To See The Children?
- Parenting Arrangements – What You Need To Consider
- Reaching An Agreement
- Types Of Parenting Agreements
- Parenting Plans
- Consent Orders
- My Children Don’t Want to Visit Their Other Parent. What Happens Then?
- Does My Separated Partner Need To Be Aware Of My New Relationship?
- What About Financial Support?
- Binding Child Support Agreements
- Are You Or The Children In Danger Or At Risk?
The Family Law Act
The Family Law Act applies to all children of all relationships. Types of relationships include children born in or before marriage or de-facto, adopted, born by artificial insemination, or surrogacy.
Stepparents, Grandparents, and other persons interested in the welfare of the children are also eligible to seek time with the children.
Equal Shared Parental Responsibility
The courts presume that both parents should have equal shared parental responsibility for their children. That is unless the children are at risk of abuse or violence or there is some other type of evidence that may convince the court that it is not in the children’s best interest.
Equal Shared Parental Responsibility is not about the amount of time you spend with the children. Instead, it is about your capacity and right to make long-term decisions for the children. For example, where they go to school, what religion they participate in, and what medical procedures they incur.
Equal Shared Cared Responsibility means that both parents retain full parental rights and responsibilities concerning their children. Both parents consult and decide jointly regarding major long-term decisions that affect the welfare of the children.
- Long term issues may include:
- Education and choice of school.
- Religious upbringing.
- Health decisions; and
- The child’s name.
It does not include day-to-day decisions about the children’s care, such as what they eat or wear. However, upon application by another party, a court may order that only one parent has Sole Parental Responsibility for the children. Therefore, the other party has no say in the long-term decisions of the children.
A court may order this because one party is incapable of being responsible for that child or poses a risk. Another example is where both parties are in a very toxic separation where they cannot simply agree to anything, subsequently causing trauma within the family unit.
In cases like the above, the parent with primary care of the children may receive Sole Parental Responsibility for the children. However, the courts do not take these orders lightly; thus sufficient evidence would be required before the court made this order.
Suppose an argument is presented to the court regarding Parental Responsibility. In that case, it is essentially decided upon what is in the children’s best interests and what is reasonably practicable.
Does The Court Require Children To Have Equal Time With Both Parents?
Suppose the courts have ordered the parents to have Equal Shared Parental Responsibility. In that case, the courts must also consider whether the children spending equal time with their parents is in their best interest and is reasonably practicable.
Whether it is in the children’s best interest and reasonably practicable depends upon the facts of the case. Just because the courts must consider equal time does not necessarily mean they will order equal time.
Therefore, it is arguable that, even where it is reasonably practicable to accommodate children spending equal time with both parents, a court may resist such an order because it is not in the children’s best interest in the overall scheme of the matter.
An example of why the courts would not order equal time would be when the children are young and would benefit from remaining in a consistent and stable environment. Therefore, preferring the children to reside at ‘one home’ rather than alternate regularly between ‘two homes’. However, there is no harm in negotiating an arrangement where once the children are at an acceptable age, that time can transition into equal time between the parents.
Other matters that the court will take into consideration when determining parenting arrangements are:
- How equal or substantial and significant time will affect the children and their schedule at school;
- The distance in travel required for the children to see both parents;
- Each parent’s ability to share care and communicate with one another; and
- Any other considerations it thinks are relevant.
Advantages of Equal Shared Care Arrangements
The advantages of equal shared care are, perhaps, the obvious: giving children the benefit of the love and care of both their parents and the ability to maintain close and loving relations with each of them.
It also offers flexibility and the opportunity of support networks to both parents, ensuring that the parents’ personal goals, career progression, and interests are maintained.
In turn, this balance can positively impact both the children and your relationship with the other parent, nurturing healthy and caring connections.
The Disadvantage Of Equal Shared Care Arrangements
Equal Shared Care Arrangements can have their disadvantages, including potential instability for the children in terms of housing/accommodation and, in addition, different parenting techniques and attitudes.
In highly conflicted matters, an Equal Shared Care Arrangement risks being a partial continuation of the toxic relationship, which may cause further confusion or exposure to ongoing conflict for the children.
Substantial And Significant Time
Suppose the courts determine that Equal Shared Care Arrangements would not be in the children’s best interest nor reasonably practicable. In that case, they must consider whether it is in the children’s best interest to spend Substantial and significant time with the other parent.
The Courts will grant Substantial and Significant time to the other parent if it is in the children’s best interest and reasonably practicable.
In determining whether the courts should grant Substantial and Significant time, they must consider whether it is in the children’s best interest and reasonably practicable.
How The Courts Assess Substantial And Significant Time
Substantial and significant is considered to be:
- Time including days that fall on weekends, holidays, and days which do not fall on these days, for example, weekdays.
- Time which allows the parent to be involved in the children’s daily routine and days of significance to the children, such as birthdays and Christmas.
- Time which allows the children to be involved in days of significance to the other parent.
The court may also have regard to any other matter it thinks appropriate in determining whether or not the time a child spends with the parent is substantial and significant.
Reasonably Practicable
In assessing whether it is reasonably practicable, the law states that the court must have regard to:
- Practicality relating to each parent’s living location
- Their present and potential capability to meet predetermined arrangements with spending time
- Each parent’s ability, both current and future, to effectively communicate where problems arise implementing and meeting predetermined arrangements
- How predetermined arrangements can impact a child; and
- Any other such matters as the court considers relevant.
What If There Are No Orders? Who Can Take The Children?
Until court orders are in place, either parent can take the children. However, whoever takes the children must ensure that the children spend substantial and meaningful time with the other parent. That is, of course, unless there are concerns of risk or violence.
In that case, you should protect yourself and the children immediately and apply for a domestic violence order. Not only will a domestic violence order protect you and the children, but it can also prevent the other parent from seeing or taking the children. This order is beneficial when there are no parenting orders in place.
Relocation – Can I Move Interstate With The Children?
Suppose you wish to relocate with the children. In that case, you should obtain consent from the other parent unless there are genuine reasons why you cannot obtain their consent. For example, the children may be at risk of violence, neglect, or negligence from that parent.
The Act states that, in the absence of violence and negligence, both parents are to spend significant and substantial time with the children. Therefore, if a parent relocates without the other parent’s consent, the courts may order the relocating parent to return to their original destination upon application to the court by the other parent.
We strongly recommend that you seek legal advice to discuss relocation matters before enacting your plans. Any decisions you make concerning relocations could be detrimental to your future care of the children.
Do We Have To Go To Court For Parenting Arrangements?
No. The only time you need to go to court is when the parents cannot reach an agreement. Alternatively, you can document the agreement in an informal Parenting Plan (unenforceable) or by way of formal Consent Orders (enforceable).
How To Decide Who Spends What Time With The Children?
Suppose both parents have been equally involved in the children’s lives, and the children are of an age where they could cope with the transition. In that case, the parents may consider Equal Shared Care arrangements, week-about.
Equal shared care arrangement is tough to maintain and requires a lot of dedication, communication, and cooperation between the parents and children. This arrangement is not recommended for parents who find it difficult to agree upon matters.
In matters where parties decide not to care for the children equally, neither parent must alienate the other parent from the children. There are severe consequences if a parent alienates the other parent.
An alternative to equal shared care of the children is where the children reside with the parent who has been the children’s primary carer and spends significant and substantial time with the other parent.
The amount of time the children spend with the other parent depends upon the facts of the matter. For example, young children may benefit from periods of contact that are more frequent but shorter in time. However, older children may benefit from less frequent but more prolonged time, for example, each alternative weekend, from Friday afternoon after school to Monday morning before school.
What If My Partner Does Not Want To See The Children?
You cannot force a parent to see or be involved in the children’s lives. However, you could suggest family counselling or dispute resolution services that may assist in bridging the gap to any unresolved issues.
Parenting Arrangements – What You Need To Consider
When considering parenting arrangements, you should consider:
- Any existing arrangements if they are working.
- Where the children will live.
- How far away you live from the other parent and how this can affect your arrangements to spend time with the children (e.g., travel time, transport costs).
- Who the children spend time and communicate with.
- Family arrangements with relatives and other people who are important to the children
- Schooling or Childcare.
- Medical issues.
- Religious or cultural practices.
- Other family commitments, including your work commitments and those involved in the children’s care.
- Children’s sporting and social commitments.
- Transport arrangement for children (e.g., pick-ups and drop-offs).
- Holidays, birthdays, Easter, Christmas, Mother’s Day, Father’s Day, and other special occasions.
- Contact by telephone, email, and post.
- How to sort out any disagreements about the current arrangements and how you can change them in the future if circumstances change without having to go to court.
- Financial support for the children (see Child Support)
- How you will share responsibility for care of the children between all involved, including how you plan to communicate with each other
- The developmental stage and age of your children – for example, as mentioned above, very young children may benefit from short and frequent contact.
Reaching An Agreement
The main aim in reaching an agreement is to meet the children’s best interests while maintaining a practical and reasonable arrangement for both parents. Each party’s situation is unique. For example, one party may be a fly-in fly-out worker, so their roster continually changes verse someone who works consistently, 5days a week, 9 to 5.
Therefore, the parents should carefully tailor their agreement to provide for their situation accurately. Ambiguous or incorrect agreements inevitably lead to disputes costing the parents time, money, and stress to all those involved in the process.
Provided the agreement is in the children’s best interest, parenting arrangements can be custom-made.
When considering parenting arrangements, Parents should consider the quality of care rather than quantity. It is essential to ensure the children remain in a settled environment which will enable them to maintain their education and live a healthy life.
Planning with everyone involved can help build essential support networks for your children and yourself. If you are unable to reach an agreement, seek legal advice. Having an awareness of your rights, obligations, and responsibilities is vital.
If you cannot afford a lawyer, a Family Dispute Resolution Service may assist you. They cannot provide legal advice but can help with parenting plans and what to do next. See link to Family Relationships Australia.
Types Of Parenting Agreements
If children of the relationship are under 18 years of age, the Family Law Act 1975 (Cth) requires the parties to immediately make proper arrangements for those children’s care, welfare, and development.
There are three different types of parenting arrangements
- Parenting Plans (this is an informal signed agreement between the parties which is not enforceable);
- Consent Orders (enforceable); and
- Parenting Orders (enforceable).
Parenting Plans
A Parenting Plan is an informal and unenforceable written agreement, signed by both parties, setting out the children’s care arrangements.
It does not need to be in a specific format, and signatures do not need to be witnessed, although it is advisable. Parents can change Parenting Plans by drafting a new agreement and then signing and dating it.
Where parents are amicable and can reach an agreement, parenting plans are perfect. They’re flexible and can take everyone’s needs into account.
On the contrary, if you cannot agree upon anything, this type of agreement would not be of any use and would further inflame the situation.
Before agreeing to a Parenting Plan, parents should consider seeking legal advice. Although Parenting Plans are not enforceable, the courts will consider what was agreed to if the matter proceeds to court.
Parents already in receipt of court orders shouldn’t enter into Parenting Plans. Instead, if they require the orders to be changed, they should seek a Variation of Orders.
The downside of a Parenting Plan is that they are not enforceable. Therefore we strongly advise that the parents formalise their Parenting Plan into formal Consent Orders, which are enforceable.
Consent Orders
Consent Orders are applications to the court incorporating the agreed terms contained in the Parenting Plan into Consent Orders, thus turning an informal agreement into a formal agreement. Therefore, your agreement will be binding.
Both parties must adhere to the orders; otherwise, they will breach the orders, which may result in severe consequences.
To apply for consent orders, you need to complete the approved court form “Application for Consent Orders” and in addition, attach the proposed orders you seek.
The Consent Orders must be signed, dated, and witnessed by an appropriate witness, for example, a Justice of the Peace or a Lawyer.
We strongly recommend that you do not prepare Consent Orders yourself without seeking legal advice first, as failure to obtain advice could severely affect your rights pertaining to your children.
Skene Lawyers offer free initial advice, and we strongly recommend that you contact us before entering into any of these agreements.
Neither party is required to attend court when filing consent orders. Instead, it is done purely on an administrative basis (documents only lodged through the Commonwealth Portal). Once the court has reviewed the consent orders to ensure that they are in the children’s best interest, the court will produce sealed orders.
If the forms are incomplete or inaccurate, the court may reject the orders. The parents can change consent orders if they both agree by entering into new Consent Orders. Alternatively, a parent can lodge an application to the court for Variation of Orders.
Once Consent orders have been formalised by the court, it becomes a formal binding legal document that a parent can rely upon if the other parent is reneging.
My Children Don’t Want To Visit Their Other Parent. What Happens Then?
This will depend upon the children’s ages and whether there are court orders in place about spending time with the other parent.
If there are no orders in place, time spent with the parent cannot be enforced by a parent until orders are in place.
If the children refuse to visit the other parent, you still have a duty to encourage them to see the other parent as this is in their best interests. That is, of course, unless there is a risk of abuse or neglect. In that case, it is crucial to obtain legal advice to understand your rights and position with respect to protecting the children from any further abuse or negligence.
If there is a court order saying the children should spend time with the other parent and don’t want to go, you should immediately seek legal advice.
If you believe the children are at serious risk of physical or psychological harm if they spend time with the other parent, you should seek legal advice immediately. You may also wish to inform the police and other services such as Children’s Services about your concern.
Suppose the parents cannot reach an agreement and the dispute ends up in court. In that case, the court will consider the children’s age and maturity when deciding whether they should spend time with the other parent.
It may be a situation where supervised visits are applicable in the event of violence or neglect.
Does my separated partner need to be aware of my new relationship?
No, from a legal perspective, you don’t need to ask your separated partner for permission to start a new relationship.
What About Financial Support?
Financial support is every parent’s duty, and various factors determine each parent’s financial responsibility.
- The parent’s individual income
- The frequency and time a parent spends with their children
- The ages as well as how many children there are; and or
- If either parent has a second family or families that are financially dependent upon them.
Legal advice is essential when considering financial support as other extenuating circumstances can affect child support assessments.
These rules also apply to same-sex parents, who are also eligible to apply for and pay child support.
Binding Child Support Agreements
Parties may not wish the Child Support Agency to assess their matter. Instead, they may want to enter into a private Binding Child Support Agreement. For more information, see Child Support.
Are you or the children in danger or at risk?
Where there’s a risk of family violence, get immediate help – Call the police on 000.
For help with planning or working out your options, domestic violence crisis services such as 1800Respect can be helpful; legal advice is also crucial.
See Domestic Violence for further information.
Disclaimer: The above information is not to be taken as advice as each matter is unique to its own set of circumstances. We highly recommend that you seek legal advice before you commence any action regarding your matter.
For clarification, please contact us on 0431 336 999 or amanda@skenelawyers.com for an appointment.
Our Principal, Amanda Skene, is experienced in the issues surrounding family law and can help navigate you through this delicate and emotional path.
Contact Skene Lawyers now to obtain the advice you need.