Deciding parenting arrangements for your child or children can be daunting. Parents must determine who the child will live with, how the child will spend time with the other parent and whether or not any specific concerns need to be attended to in order to protect the child.
Children benefit from having an arrangement in place that becomes routine, predictable and stable, particularly when they are getting used to living between two separate households. If you cannot decide on parenting arrangements for your child or children, the court will intervene and decide for you.
Formally Documenting Plans
If you and your former spouse are able to successfully negotiate parenting arrangements for your child or children, it is highly recommended that the arrangement be formally documented. This can be done in one of two ways:
- A parenting plan; or
- A consent (parenting) order.
Parents are strongly encouraged to consider entering into, at least, a parenting plan to formalise arrangements in relation to children. A parenting plan is a written agreement that separated parents can enter into that sets out how their child or children will be cared for and supported following separation.
Agreeing on the terms requires a decent level of communication, co-operation and often compromise between the parents. It is best to remain ‘child-focused’, and keep the best interest of your child or children at the forefront of the discussions.
A parenting plan does not have to be prepared by lawyers and does not have to be approved by the court. All that is required is that the terms of the agreement are in writing, dated and signed by both parents. This is quite a cost-effective method of recording an arrangement.
Importantly, the terms will not be binding and enforceable, and therefore cannot be enforced by way of contravention proceedings. This might cause conflict in the future; however the benefit is that the terms can be replaced or varied from time-to-time by agreement between the parents.
Despite not being binding and enforceable, a parenting plan will be very good evidence in any future court proceedings of what parents considered is in their child or children’s best interests at the time that they entered into the plan.
If after your relationship breaks down, you still have children under the age of 18 years, it will always assist to have a healthy co-parenting relationship with your former spouse.
A healthy co-parenting relationship is a fantastic foundation for stability and consistency within the family, and assists your child or children to harbour a meaningful relationship with both parents individually. It also allows your child or children to feel more secure, so they can adjust to the change in circumstances following the breakdown of your relationship.
We also suggest attempting to implement the following techniques at the earliest opportunity:
- Stay child-focused at all times. Family law will always promote the best interests of your child above anything else;
- Separate your previous romantic/intimate relationship with your former spouse, from your new relationship as co-parents (it is effectively a ‘new’ relationship);
- Avoid having a “fun” parent and a “regimented” parent;
- Have an open dialogue with your former spouse about all issues in respect to parenting, and if you’re not sure then always ask;
- Remain calm in your tone, demeanour and body language;
- Do not involve the child or children in adult issues;
- Be as consistent as possible between the houses in respect to parenting styles;
- Agree on boundaries for the children;
- Agree on the involvement of third parties in the children’s lives (such as extended family, new partners, and school friends);
- Recognise and utilise the strengths of each parent;
- Always attempt to resolve conflict, as opposed to letting a problem snowball; and
- Utilise Apps/Websites to assist, such as:
Co-parenting relationships can erode where disagreements occur from time to time. The best way to mitigate disagreement is to have an agreement in place which outlines parenting arrangements moving forward. Parenting arrangements can be recorded in parenting plans or parenting orders.
For more information about how to proceed so as to ensure an amicable co-parenting relationship can be achieved in the future, please contact our family law department.
There is a presumption that it is in the best interest of every child for that child’s birth parents to have equal shared parental responsibility. That is, they will both have a role in making decisions about major long-term issues.
The presumption of equal shared parental responsibility will apply unless there are grounds to believe that a parent of a child has engaged in:
Abuse of the child or another child who, at the time, was a member of the family; and/or
Equal shared parental responsibility
If it is found that equal shared parental responsibility is appropriate, the court will order that both parents consult one another and equally participate in the making of long-term decisions. For example:
- Where a child will live;
- Whether a child will relocate interstate or overseas;
- Whether a child is permitted to travel interstate and/or overseas, and, if so, how the trips will be funded;
- What private or public school or day-care centre a child will be enrolled in;
Equal shared parental responsibility
- What particular religious activities or institutions, if any, a child will participate in;
- Any elective surgery and/or immunisation a child will undertake;
- What the child’s name will be (including the child’s surname and whether it is to be hyphenated);
- Who a child’s doctor, dentist, mental health professional, or other health professional will be (with the exception of emergency situations);
- Whether a child will begin or end psychiatric, psychological or other mental health counselling or therapy; and
- Whether a child will participate in extracurricular activities, and, if so, how these will be funded.
Upon the breakdown of a relationship, each of the above mentioned decisions can be negotiated, agreed and formally drafted into consent orders.
Consent orders assist in setting out how each decision will be dealt with from time-to-time while the child or children grow up, including what will happen if a decision cannot be reached between the parents. This invariably reduces tension and disagreement between former-spouses.
In circumstances where an agreement cannot be reached, an application to the court can be made, so that the court determines what will happen, with the best interests of the children in mind.
Sole parental responsibility
In extreme circumstances, for example those involving child abuse and/or family violence, equal shared parental responsibility would be inappropriate. One parent (or a third party, if necessary) will be given sole parental responsibility for that child. That individual will have the capacity to make long-term decisions about the child without consulting anyone else.
Best Interests Of Your Child
Undoubtedly, while negotiating parenting arrangements in the post-separation periods, your child’s best interests should be at the forefront of your mind. A child’s family provides a foundation for their development, and how you and your co-parent handle the breakdown of your relationship will affect how well your child copes with situations and relationships moving forward.
If you and your former spouse are unable to agree on parenting arrangements for your children, an application can be filed with the court so that the parenting arrangements are determined on the family’s behalf (provided an attempt has first been made to resolve the matter at Family Dispute Resolution)
In deciding parenting arrangements on a final basis, the paramount consideration for the court is the “best interests of the child”.
- Family law considers that the best interests of your child or children are met by:
- Ensuring that the child or children have the benefit of a meaningful relationship with both parents;
- Protecting the child or children from physical or psychological harm (such as being subjected to, or exposed to, abuse, neglect or family violence;
- Ensuring that the child or children receive adequate and appropriate parenting to help them achieve their full potential; and
- Ensuring that parents fulfil their duties and meet their responsibilities regarding the care, welfare and development of their child or children.
With each child being so inherently different, how will the courts determine what is in the best interests of your child?
First and foremost, the court will favour parenting arrangements that:
Protect your child or children from physical and psychological harm, abuse, neglect or family violence that has been directed at them or that they have seen or heard; and
Promote a meaningful relationship with both you and your former partner.
Of these ‘primary considerations’, greater weight will be placed on protecting the child from physical and psychological harm. If one parent exposes the child to physical and/or psychological harm, then it might be in the best interests of a child to be removed from that parent’s care, despite the fact that this might compromise the promotion of a meaningful relationship.
The court will also be guided by a non-exhaustive list of ‘secondary considerations’ when determining what parenting arrangements should be implemented.
These are listed in Section 60CC of the Family Law Act 1975 (Cth) and include:
- Any views or wishes as expressed by the child (the weight given to such views or wishes will depend on the level of maturity and understanding of the child);
- The nature of the relationship between the child and the child’s parents, siblings, grandparents, step-siblings, half-siblings, cousins, etc. (particularly if the child would not cope with being removed from living with these relatives);
- The extent to which each parent has historically participated in the child’s life, spent time with the child, and communicated with the child. The court will consider whether to preserve the status quo, especially if this is an arrangement that has been working for the family;
- The likely impact that any change in the child’s circumstances will have on the child;
- The practical difficulty and expense of a child in spending time with and communicating with each parent (particularly where the parents will be living significant distances away or where one parent relocates);
- The capacity of each parent to tend to the child’s needs (both emotionally and intellectually); and
- Any family violence involving the child or a member of the child’s family.
Upon weighing up the above factors, and anything else the court considers significant in the circumstances, the court will make a determination as to what is in the best interests of your child, and make a final parenting order that promotes this. Once an order is made, you and your co-parent will be required to positively enforce it, or risk being in contravention.
Importantly, the child’s best interests should not be limited to judicial decision making. In fact, even if parenting arrangements have been formalised, a child’s best interests should be at the forefront of all decision making that is being made by a parent throughout the child’s life.
If your relationship has broken down irretrievably, you and your former spouse can negotiate and agree on the amount of time you each spend with your child or children. The arrangements can then be formally recorded in a parenting plan or parenting order. If an agreement cannot be reached regarding the time you and your former spouse will spend with your child or children, either party can apply to the court to make an order regarding ‘parenting time’.
Understandably, the court cannot order that a parent spend time with their child. However, when a parent does wish to spend time with their child, then an order for parenting time will ensure that the other parent facilitates this time and does not interfere. There is a presumption that parents will have equal shared parental responsibility.
If equal shared parental responsibility is presumed, this does not automatically mean there will be equal time spent with your child. The court will consider the following graduations of time and, in each case, determine whether the arrangement is in the best interests of the child.
An equal time arrangement might mean one week ‘on’ and one week ‘off’ with each parent, or a number of days ‘on’ and a number of days ‘off’, such that the child spends the same amount of time with each parent.
An equal time arrangement will be awarded only if it is found that:
- It is in the child’s best interests for equal time to be awarded; and
- On a practical level, an equal time arrangement can be facilitated between the parents.
An equal time arrangement will be considered ‘practical’ if:
- It does not adversely affect the child or otherwise impact on their life negatively;
- The parties do not live too far away (such that the time and costs to facilitate equal time are not unreasonable);
- Each parent has the ability to:
- Co-parent sufficiently;
- Share care and communicate with one another effectively;
- Resolve difficulties in relation to the proposed arrangements;
- Ensure that all arrangements are in the child’s best interests (and not to suit their own agenda);
- There is any other consideration the court thinks relevant to the practicality of equal time.
If equal time is not in the child’s best interests and/or is not practical, the court will consider substantial and significant time.
Substantial and significant time
Substantial and significant time occurs when both parents care for the child or children on the weekend, throughout the week and during the child or children’s holidays. For example, one parent might have ‘primary care’ of the child or children, and the other will spend time with the child or children each alternate weekend and every Wednesday evening.
Effectively, both parents share in the routine (getting the children ready for school, helping them with their homework, cooking them meals) and leisure (weekend play, after school play).
Again, a substantial and significant time arrangement will be awarded if it is found to be in the child’s best interests and if it is practical for such an arrangement to be put in place. If substantial and significant time is not practical and/or is determined not to be in the child’s best interests, the court can order any combination of time that is suitable for the particular family.
The court recognises that no child is the same. The court has the flexibility to order any arrangement which is in the child’s best interests and which the parties can practically orchestrate.
By way of example, if you or your former spouse works ‘fly-in, fly-out’ and is only home for one week every month, the court might order that time with the kids occur for that full week.
The court has capacity, in certain circumstances, to order that a child spend no time, limited or regimented time with one parent. Regimented time might mean that:
- Certain conditions are imposed (i.e. that the parent partake in a breathalyzer test prior to parenting time);
- Time occur under supervision of another person (either a relative or an independent third party); and/or
- Time occur at a contact service.
Such parenting arrangements will occur, for example, where there is abuse and/or family violence or risk of harm to the child (psychologically and/or physically). It is often the case that, in those circumstances, the presumption for equal shared parental responsibility will be rebutted.
It goes without saying that special occasions, for children, highlight significant milestones, events and memories in their lives. For parents, these occasions can be filled with stress and pressure. This stress is only heightened by the breakdown of a relationship and attempting to co-ordinate two households.
Special occasions and holidays can include:
- Christmas Eve, Christmas Day and Boxing Day;
- The child’s birthday;
- Either parent’s birthday;
- Another family member’s birthday (grandmother, grandfather, auntie, uncle, cousin, etc.);
- Religions and/or cultural days;
- Graduation days; and
- Other public holidays and/or long weekends.
Ideally, you and your co-parent would be able to orchestrate an arrangement where holidays do not change much from the way they were in the pre-separation period. This would give the child or children the stability and consistency necessary to assist them to transition from one household to two households. However, in some circumstances, ‘joining’ holidays with your co-parent is not a possibility.
It is encouraged (and in some instances mandatory) that you and your co-parent negotiate and come to your own arrangements. That way, you are both mutually in control of how your child or children will spend their holidays, in a way that is tailored to suit them. For example, one Easter might be spent with their mother and the next with their father. Alternatively, the child or children might spend the morning of their birthday with their mother, and the afternoon of their birthday with their father.
It is imperative that while negotiating with your co-parent, you keep the best interests of your child at the forefront of your mind. A child should be able to continue to maintain relationships with both of their parents, their friends and their relatives, despite any separation. By allowing the child to continue with family rituals, traditions and holidays in a way that is uninhibited by angst and tension, will assist the child or children moving forward.
Once parenting arrangements have been negotiated, they can be formalised by way of a parenting plan or a parenting order. The stress associated with attempting to coordinate special occasions between two households can then be significantly reduced. By formalising arrangements, the need to compromise, negotiate and communicate with your former spouse is minimised.
If an arrangement cannot be negotiated between you and your former spouse, it is possible to make an application to the court so that the court makes a decision on your behalf. In doing so, the court will consider what is in the best interests of your child.