Parenting arrangements after separation.

Parenting plans, consent orders and parenting orders

1. Parenting plan. A written agreement between the parents about the care of the children. It must be signed and dated. It is not legally enforceable. No court application is needed.
2. Consent orders. Parenting orders made by the court based on what the parents agree. You apply without needing to attend court. They are legally binding and can be enforced.
3. Parenting orders after a court case. If parents cannot agree, the court decides and makes orders.

Parenting orders can cover where a child lives, the time a child spends with each parent and others such as grandparents, decision-making, and communication.

Unless the court orders otherwise, a later parenting plan can change a parenting order.

How the court decides

The best interests of the child are the paramount consideration.

The court can only make parenting orders, including consent orders, that are in the child's best interests.

In deciding what is in a child's best interests, the court looks at matters such as:

1. The safety of the child and of the people who care for the child, including any history of family violence.
2. Any views expressed by the child.
3. The child's developmental, psychological, emotional and cultural needs.
4. Each carer's capacity to meet those needs.
5. The benefit to the child of a relationship with each parent and other people who are important to them, where it is safe.
6. Anything else relevant to the child's circumstances.

For Aboriginal and Torres Strait Islander children, the court also considers the child's right to enjoy their culture.

Changes from 6 May 2024

Changes to the Family Law Act took effect on 6 May 2024.

1. The presumption of equal shared parental responsibility was removed.
2. A shorter list of best interests factors now applies.
3. There has never been a requirement that children spend equal time with each parent.

Where parents have joint decision-making about a major long-term issue, they must make a genuine effort to reach a joint decision.

Most of the new rules apply to existing cases unless the final hearing had already started.

Family dispute resolution and the section 60I certificate

Before you apply for parenting orders, you must generally attempt family dispute resolution.

A registered Family Dispute Resolution Practitioner issues a certificate under section 60I of the Family Law Act. It is valid for 12 months.

A certificate can be issued if the other party will not attend, if no agreement is reached, or if the practitioner decides dispute resolution is not appropriate.

The main exceptions are:

1. The matter is urgent.
2. There are reasonable grounds to believe there has been, or there is a risk of, family violence or child abuse.
3. A party cannot take part effectively, for example because of incapacity or distance.
4. The application is about a breach of an order made less than 12 months ago, showing serious disregard for it.
5. The application is for consent orders. No certificate is needed.

An exemption must be explained in an affidavit. If it is refused, the application will not be accepted for filing.

Common questions

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