Children and Parenting Arrangements
Children and Parenting Arrangements
When parents separate, one of the most important considerations is how the parenting responsibilities will be shared. In Australia, parenting matters are governed by the Family Law Act 1975 (Cth), which provides a framework for determining parenting arrangements and promotes shared parental responsibility, where appropriate. The upmost consideration to all parenting matters is ensuring the best interests of the child or children are prioritised.
Section 60CC(2) of the Family Law Act 1975 (Cth) provides six general considerations that the Federal Circuit and Family Court of Australia must consider when determining the best interests of the child or children, including:
- What arrangements would promote the safety (inclusive safety from being subjected to, or exposed to, family violence, abuse, neglect, or harm) of
– The child and
– Each person who has care of the child
- Any views expressed by the child, taking into account their age.
- The developmental, psychological, emotional and cultural needs of the child.
- 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.
- The benefit to the child of being able to have a relationship with both the child’s parents and the other people who are significant to the child, where it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
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Section 60CC(3) of the Family Law Act 1975 (Cth) provides two further considerations the Federal Circuit and Family Court of Australia must consider if the child or children is Aboriginal or Torres Strait Islander, which includes:
- The child’s right to experience and maintain their Aboriginal or Torres Strait Islander culture, including the support, opportunity and encouragement to:
- To remain connected with members of their family, community, culture, country and language;
- Explore and understand the full extent of that culture, consistent with the child’s age, developmental level and views and Develop an appreciation of that culture.
- How any proposed parenting order may adversely affect this right.
Parental responsibility
Under the Family Law Act 1975 (Cth), equal shared parental responsibility is presumed as being in the best interests of the child or children.
Equal shared parental responsibility means that both parents are to be involved, and consult each other regarding major long-term decisions about their child, such as educational, health and religion and responsibilities regarding their child or children.
The presumption of equal shared parental responsibility will not apply in cases where there are reasonable grounds to believe that one parent has engaged in family violence or child abuse, or in the event that an order for equal shared parental responsibility would not be in the child’s best interests. In some instances, it may be in the best interests of the child or children for one parent to have sole parental responsibility about some, or all long-term issues.
Formalising parenting arrangements
Parenting Plan
A Parenting Plan is an informal, written agreement between parents that sets out the parenting arrangements for a child or children, from living arrangements to education and communication.
A Parenting Plan is not legally enforceable, which provides a greater level of flexibility, in that they can be changed or altered in the event of a change in circumstances.
Parenting Plans are often suitable for parents who are amicable and able to jointly agree to the terms.
Parenting Orders
Parenting Orders are legally binding, and formalise parenting arrangements in a legally enforceable manner. If both parents have reached agreement about arrangements for your child or children, these arrangements can be formalised by consent. Parenting Orders that have bee made by consent are orders that are agreed to by both parents. These orders are legally enforceable by the Federal Circuit and Family Court of Australia, provide certainty and help prevent any future disputes between parents as to parenting arrangements. These orders do, however, require formal Court approval and have less flexibility to alter, without legal intervention.
If both parents cannot reach agreement about arrangements for the care of the child or children, there are steps required to resolve disputes, prior to instituting proceedings in the Federal Circuit and Family Court of Australia. As prescribed by the Federal Circuit and Family Court of Australia, these steps are called pre-action procedures. Pre-action procedures aim to allow parties the opportunity to explore possibilities for resolution of their dispute. The step-by-step process of the pre-action procedures include:
- Attend Family Dispute Resolution (unless an exception applies).
- Enter into a Parenting Plan or apply for an Application for Consent Orders
If both parents are able to reach agreement through Family Dispute Resolution, the agreement can be formalised either by way of a Parenting Plan, or by filing an Application for Consent Orders.
Provide written notice of intention
If both parents are unable to reach agreement through Family Dispute Resolution, or are deemed not appropriate to attend Family Dispute Resolution, a Section 60I Certificate will be issued , which is valid for twelve months. This is proof that the parents have attempted Family Dispute Resolution.
If you are considering applying to the Federal Circuit and Family Court of Australia, you must provide the other party with written notice of your intention to commence proceedings. The notice of intention must set out:
- The issues in dispute;
- The orders sought;
- A genuine offer to resolve the issues in dispute; and
- A nominated timeframe within which the other party must reply.
Reply to written notice of intention
If you receive written notice of intention, you must reply in writing, indicating whether or not the offer is accepted. The response must be received in the timeframe nominated in the notice of intention you received.
If you do not accept the offer, your reply must set out:
- The issues in dispute;
- The orders sought by you if proceedings were commenced;
- A genuine counteroffer to resolve the issues in dispute; and
- A nominated timeframe within which the initiating party must reply.
Taking court action
If no agreement is reached after reasonable attempts to resolve the issues in dispute by correspondence exchanged, you can apply to the Federal Circuit and Family Court of Australia for parenting orders.
A parenting order may deal with who the child or children live with, the time in which the child or children will spent with each parent, the allocation of responsibility for making decisions about major long-term issues regarding the child or children, communication between the child or children and the parent they do not live with and the circumstances in which the child may travel.
Orders may be made by consent, on an interlocutory or final basis, which is comprised as follows: lications.
- Consent Orders are orders yourself and the other party agree on.
- Interim Orders usually last until other orders or Final Orders are made.
- Final Orders will bring your matter to a close.
At Cahill Family Lawyers, we understand that every family’s situation is unique and what works for one family, may not suit another. Our experienced team can assist you with negotiating parenting arrangements, drafting Parenting Plans and Application for Consent Orders, representation in court and any urgent applications, including, but not limited to, Recovery Applications.
Disclaimer:
The information provided on this page is of a general nature and does not constitute legal advice. Family law parenting matters can be incredibly complex and vary depending on individual circumstances. We recommend that you contact our office directly for tailored legal advice, suited to your individual needs and circumstances.