How to Make Parenting Arrangements After Separation

by Walid Joseph Kalouche

Parents often refer to “child custody” when discussing their children’s parenting arrangements after separating from their partner. However, this term is no longer used by legal professionals or within Australia’s family law system. Since 1995, the terminology has shifted to a combination of:

a. Parental Responsibility with
b. who the child lives with
c. who the child spends time with

Sometimes they are simply referred to as “parenting arrangements” or “living arrangements”.

Parents, grandparents and anyone concerned with the care, welfare and development of a child may apply to the court for such orders.

The Family Law Act 1975 empowers the Family Law and Federal Circuit Court to issue orders concerning almost everything concerning the overall care, welfare and development of children in Australia.

When resolving disputes related to children, the Court’s primary focus and what is called the Paramount consideration is the “best interests of the children”. Section 60B of the Act outlines the key objectives of the act, namely:

(a)  to ensure that the best interest of children are met, including by ensuring their safety; and

(b)  to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Before the May 2024 amendments, the objects were slightly different as follows:

  • Ensuring that children benefit from both parents’ meaningful involvement in their lives, as long as it aligns with the child’s best interests.
  • Protecting children from physical or psychological harm, including exposure to abuse, neglect, or family violence.
  • Guaranteeing that children receive proper parenting to reach their full potential.
  • Ensuring that parents fulfil their responsibilities concerning the care, welfare, and development of their children.

Ideally, parents should agree on their children’s care arrangements. These discussions can take place directly between the parents or with the help of a legal representative.

Mediation (aptly called in Family Law as ” Family Dispute Resolution”) is a common tool used to help parents reach an agreement on their children’s care. In most cases, parents are required to attempt mediation before pursuing Court proceedings. If an agreement cannot be reached, parents may file an application with the Family and Federal Circuit Court of Australia to obtain formal Orders regarding their children’s care.

When making arrangements for your child, you may follow what the court’s considerations are which are listed at section 60CC of the Family Law Act as follows:

(a)  what arrangements would promote the safety (including safety from being subjected to, or exposed to family violence, abuse or neglect, or other harm of:

(i)  the child; and

(ii)  each person who has care of the child (whether or not a person has parental responsibility for the child);

(b)  any views expressed by the child;

(c)  the developmental, psychological, emotional and cultural needs of the child;

(d)  the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

(e)  the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so;

(f)  anything else that is relevant to the particular circumstances of the child. If parents reach an agreement on parenting arrangements, there are three ways to document it:

1. Verbal or Informal Agreement: Parents may choose to have a simple verbal or informal agreement without any formal documentation.

2. Parenting Plan: A Parenting Plan is a written agreement, signed by both parents, that outlines the care arrangements for the children. While not legally binding, it provides clarity and flexibility, allowing parents to update the plan as circumstances change or as the children grow older. It is often useful after the parents have obtained consent orders and they want to make a minor change without having to go through the expense.

3. Consent Orders: Parents can formalise their agreement by applying to the Court for Consent Orders.  They simply write the agreement and the court will then consider whether it is in te best interests of the child / children and if approved will make the agreement into orders. If approved, these orders become legally binding and enforceable. Parenting orders typically remain in effect until the child turns 18, and there are legal mechanisms available for enforcing them.

Broadly the court might punish a parent who did not abide by the terms of the consent orders by one of several ways including education, parenting courses, make up time, variation of orders, fines and in suitable cases community service orders and jail are possible.

If you need assistance with your parenting arrangements, our experienced family law solicitors at CK Lawyers in Parramatta are here to help. Unlike most law firms, CK Lawyers offers the unique ability to assist with everything from mediation to litigation, depending on your situation. Call today to discuss your situation.

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