Children and Parenting Arrangements

In ideal circumstances, the best arrangements for children and parenting, where relationships break down, are often arrangements agreed to by the parties themselves. Importantly, when considering and formalising parenting arrangements, the ‘best interests of the child’ is paramount.

We work with our clients, and often other experts where needed, to help our clients negotiate arrangements for children that meet the needs of children.

The Family Law Act 1975 (Cth) requires parents, in most cases, to resolve parenting disputes by mediation before any court proceedings can be started. Exceptions to this general rule apply in urgent circumstances or where there is risk to a child.

What is a Parenting Plan?

A Parenting Plan is normally reached by parties working out the parenting arrangements either by directly negotiating with each other or with the help of a family dispute resolution practitioner. It must be signed and dated by both parties.    

It is not legally enforceable and is different from a Parenting Order, which is made by a court. If you do go to court, the court may take into account any previous parenting plan.

What are Consent Orders?

Consent Orders are legally binding Orders that are approved and made by the court.

This can be done by a Judge or a Registrar (a court official) making the Orders after Court proceedings have been commenced or, if the parties agree, after filing an Application for Consent Orders. Consent Orders can be enforced by the court if one or both parties breach them.

Consent Orders can deal with all types of family issues, including:

• children and parenting matters;
• financial matters;
• property settlement; and
• spousal maintenance.

If you have already reached an agreement but want the reassurance and protection of having binding orders in place, E&A Lawyers can help you apply for Consent Orders. If court proceedings have already been started, then they can be settled at any time by having Consent Orders made if the parties agree.

What do we do if we cannot agree about parenting?

If you disagree with your spouse/former partner about arrangements for children, then you must first try to resolve your parenting dispute with a mediator who is specially trained to help parties resolve family law disputes.

These mediators are called Family Dispute Resolution (‘FDR’) practitioners. FDR practitioners can be lawyers with special mediation training, social workers, counsellors or psychologists who have significant mediation training and experience.

There are also some circumstances where mediation is not possible, which include the following: 

• Urgent matters, such as a threatened abduction or another serious matter; or
• The court is satisfied that there are reasonable grounds to believe that:
  • there has been child abuse and/or family violence by a party;
  • there is a risk of family violence by a party; and/or
  • there is a risk of child abuse if there were to be a delay in applying to the Court;
• Where a party is unable to participate effectively in FDR (for example, due to an incapacity to do so or physical remoteness from an FDR provider); or
• The application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

If an FDR Practitioner does not believe that mediation is suitable, then the practitioner will not proceed with the mediation. An example of where FDR may not be suitable is where there are issues or concerns around family violence.

What happens if we go to mediation but still cannot agree on parenting arrangements?

If you have already attended Family Dispute Resolution (FDR) with an FDR Practitioner and you have not been able to agree on arrangements for your children or the mediator does not consider your matter suitable for FDR, then the FDR Practitioner will issue you with a certificate made under section 60I of the Family Law Act 1975 (Cth).

A section 60I certificate is required to be obtained before either party may apply to the court for a parenting order.  A section 60I certificate demonstrates to the court that the parties have made a genuine effort to resolve their dispute by attending at mediation or FDR. A copy of the 60I certificate would then be attached to any parenting application made to the Federal Circuit and Family Court of Australia.

The Court is not permitted to hear a parenting case unless parties have first tried FDR or one of the exceptions referred to above applies.

How do courts decide who the children will live with and spend time with?

When deciding who the children will live with and spend time with, the court applies the provisions set out in the Family Law Act 1975 (Cth). When making parenting orders, the best interests of the child is the paramount consideration of the court.

’Best interests of the child’ is not a generic term. It means the court must look closely at each individual child's circumstances before deciding what is best for that child or children.

What constitutes the child’s best interest is covered in the Family Law Act 1975 (Cth). The Act provides six ‘general considerations’ that the court must have regard to in determining what is in the child’s best interest. The Act also includes two further ‘additional considerations’ if the child is an Aboriginal or Torres Strait Islander child.

What is an Independent Childrens’ Lawyer?

An Independent Childrens’ Lawyer (‘ICL’) is sometimes appointed by a court to represent children’s interests in court proceedings. The purpose of an ICL is to act as an independent representative to assist the court in determining what arrangements are best for the children.

ICLs are required to meet with the children and provide them with an opportunity to express a view unless an exception applies. The ICL has a duty to ensure that any views expressed by a child in relation to the matters before the Court are put before the Court. They will also arrange necessary evidence, including expert evidence, to be obtained and put before the Court, and where possible, facilitate settlement negotiations between the parties of matters at issue.

However, the ICL's main function is to form an independent view, based on the evidence available to them, of what is in the best interests of the children. It must be noted that the ICL represents a child’s interests, not the child, so they are not obliged to act on the child’s views in relation to the proceedings.