Working out the everyday arrangements
Start with your children’s routines and the care they need. School hours, travel between homes, medical appointments and each parent’s availability will affect what is workable. An arrangement that suits a teenager may not suit a younger sibling.
The details worth discussing include:
Where the children will stay during the school week and on weekends.
Who will collect them, where changeovers will happen and who will organise transport.
How school holidays, birthdays and other important occasions will be shared.
How the children will communicate with a parent when they are apart.
How parents will exchange information about school, health and activities.
What to do if a child is unwell or an arrangement needs to change.
Be specific where uncertainty could cause disagreement. “Half the school holidays”, for example, leaves open which dates, when the children change homes and who collects them.
If there are existing court orders, have them checked before agreeing to something different.
If there has been family violence, or you are concerned about a child’s safety, raise this when seeking advice. Direct discussions or mediation may not be appropriate. If anyone is in immediate danger, call 000.
What does “best interests” mean?
The Family Law Act makes the child’s best interests the central consideration in parenting decisions. The court considers safety, including the safety of those caring for the child, alongside the child’s needs and the capacity of their carers to meet them.
It also considers the child’s views and the benefit of relationships with parents and other significant people, where those relationships are safe. For an Aboriginal or Torres Strait Islander child, there are additional considerations concerning their right to enjoy their culture.
This is an individual assessment. Equal time may suit some children, but it is not the required starting point. More about children and family law.
Children can be heard without being asked to choose between their parents. Listen to their concerns and explain the arrangements in language they can understand. Avoid asking them to carry messages, report on the other household or take responsibility for resolving disagreements. Talking to children about separation.
Who makes decisions about school and health?
Where a child lives and who makes major decisions are separate questions. Spending more time with one parent does not, by itself, give that parent sole authority over every decision.
Major long-term decisions include education, significant health matters, religious and cultural upbringing, and changes to living arrangements that substantially affect time with a parent.
Court orders can provide for joint or sole decision-making about some or all of these matters. Where an order requires joint decision-making, parents must consult each other and make a genuine effort to agree.
Everyday decisions generally sit with the parent caring for the child at the time, subject to any relevant orders. Understanding parenting orders and responsibilities.
Recording your agreement
A written agreement makes it easier to check what was decided. A parenting plan and consent orders can cover similar subjects, but they have different legal effects.
Parenting plans
A parenting plan is a written agreement that is signed and dated by the parents and made voluntarily. It can record the children’s living arrangements, time with each parent and how decisions will be made.
Parents can update it by agreement as their children’s needs change. It is not a court order and cannot be enforced in the same way, although a court may take it into account later.
Consent orders
Consent orders are court orders made by agreement. They are legally binding and enforceable. The court must be satisfied that the proposed arrangements are in the children’s best interests, but parents do not usually need to attend a hearing.
The choice deserves particular care if orders already exist: a later parenting plan can affect how those orders operate. Get advice before signing a new plan or relying on an informal change. More about recording parenting agreements.
If you cannot agree
Family dispute resolution, often called FDR, is mediation with an independent, accredited practitioner. It can help parents work through the points they disagree about. The practitioner does not decide the outcome.
Before applying to court for parenting orders, you generally need a section 60I certificate from an FDR practitioner, unless an exemption applies. Certificates can be issued in several circumstances, including when agreement is not reached or the practitioner considers FDR inappropriate.
Exemptions can include urgency, family violence and child abuse or a risk of abuse. You do not have to attempt mediation before getting legal advice, and urgent safety concerns should not wait for a mediation appointment. The court’s guidance on family dispute resolution and exemptions.
If court proceedings are necessary, interim orders may be sought to address arrangements while the case continues. Your lawyer can explain what orders are available and the information needed to support an application. Applying for parenting orders.
Moving with children
If you are considering a move that would affect your child’s time with the other parent, take advice before committing to it. This can matter for a move within Tasmania as well as interstate or overseas.
Existing orders may restrict the move. If agreement cannot be reached, court permission may be needed. Moving without agreement or an authorising order can lead to an order for the child’s return. The court’s guidance on relocation.
Overseas travel and passports
Where relevant parenting orders are in force, or parenting proceedings are underway, taking a child out of Australia generally requires an authorising court order or authenticated written consent from every other party. “Authenticated” means the consent must meet formal signing and witnessing requirements; do not assume a text message is enough.
Taking a child overseas without the required permission, or keeping them there beyond the permitted period, can be a criminal offence. Check the arrangements before booking. Overseas travel requirements.
A passport application is a separate issue. It generally requires consent from everyone with parental responsibility under passport law - not necessarily just the child’s two parents.
Certain Australian court orders allow a passport to be issued without full consent. The Passport Office can also consider applications under special circumstances, but approval is not guaranteed and processing may take longer. Having a passport does not, by itself, establish permission for a particular trip. The Australian Passport Office’s consent requirements.
When arrangements need to change
Children’s needs change as they grow. Starting school, a new health concern or a change in a parent’s circumstances may make an existing arrangement difficult to maintain.
Where it is safe and permitted by any relevant orders, parents can discuss proposed changes directly, through their lawyers or with an FDR practitioner. How a change should be recorded depends on whether there is an informal arrangement, a parenting plan or court orders.
If parents disagree about changing final parenting orders, the court generally needs to be satisfied that there has been a significant change in circumstances and that reconsidering the orders is in the child’s best interests. Changing parenting arrangements.
If an order is not being followed, keep a factual record of the missed arrangements and relevant communications. Get advice about your obligations and the available response. One parent’s failure to comply does not automatically release the other from their obligations. What to do about a breach of parenting orders.
If a child has not been returned, cannot be located or may be taken away, seek urgent advice. The appropriate response depends on the circumstances and any existing orders. Information about recovery orders.
Getting advice about your arrangements
For advice about proposed arrangements or a difficulty with existing ones, contact PWB Lawyers.
It helps to have copies of any parenting orders or plans, a short account of the current arrangements and the questions you want answered. Our first-appointment guide explains what else may be useful to bring.
This guide is general information, not legal advice. Your circumstances are their own; a first conversation about them is confidential and carries no obligation.
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