Parenting Arrangements and Child Custody

When parents separate or divorce, one of the most important considerations is how they will continue to care for their children. In Australia, parenting arrangements are governed by the Family Law Act, which prioritises the best interests of the child above all else.

Amendments to the Family Law Act – 6 May 2024

Several significant amendments to the Family Law Act came into force on 6 May 2024, that changed the way parenting matters are dealt with by the Court. These are outlined briefly below.

Best Interests of the Child

The amendments streamlined the factors a Court considers when determining what is in a child’s best interests.

Prior to May 2024, there were 16 factors, divided into ‘primary considerations’ and ‘additional considerations’. There are now only six ‘core’ factors for the Court to consider when determining what is in a child’s best interests:

The safety of the child and each person caring for the child;
The child’s views, considering their age and maturity;
The developmental, psychological, emotional, and cultural needs of the child;
The capacity of each parent to meet the child’s needs;
The benefit of the child having a relationship with both parents and other significant individuals, such as grandparents and siblings; and
Any other relevant circumstances, including considerations for Aboriginal and Torres Strait Islander children to maintain connections with their culture.

This change to the Act aims to simplify the decision-making process and ensure a child-focused approach to determining parenting disputes.

Parental Responsibility and Decision-Making

Prior to the May 2024 amendments, the Act contained a presumption that it was in a child’s best interests for his or her parents to make decisions in relation to major long-term issues (such as religious and cultural upbringing, health, name and significant changes to living arrangements) together.

There was a common misunderstanding that equal shared parental responsibility created a right to an equal time arrangement. This created significant confusion amongst parties trying to negotiate parenting arrangements post-separation.

The presumption of equal shared parental responsibility was abolished by the May 2024 amendments. The Court is now able to allocate decision making responsibility for major long-term issues based on what is in the best interests of the child and the circumstances of the case.

Parenting Orders and Time Arrangements

Prior to the amendments to the Act in May 2024, the Court was required to consider making orders for a child spending equal time or ‘substantial and significant’ time with each parent, if the presumption of equal shared parental responsibility applied.

It remains open to the Court to make orders for an equal time arrangement, or for the child to spend substantial and significant time with each parent, if that is in the child’s best interests.

Family Violence Considerations

The May 2024 amendments place a stronger emphasis on protecting children from harm. The Court is now required to give greater weight to the safety of the child and any caregivers when making parenting orders. This includes a thorough assessment of any family violence allegations to ensure that parenting arrangements do not expose children to harm.

Cultural Connections

For Aboriginal and Torres Strait Islander children, the amendments highlight the importance of maintaining cultural connections. The Court must consider how proposed parenting arrangements will support the child’s ability to connect with and maintain their cultural heritage, ensuring that cultural identity is preserved in the child’s upbringing.

Formalising Parenting Arrangements

If parties are in agreement about the arrangements for their children moving forward, there are two ways they can formalise this:

Parenting Plan; or
Consent Orders

Parenting Plan

A Parenting Plan is a written agreement between the parties, that is not legally binding or enforceable. Parenting Plans provide flexibility but rely on both parents to comply with the terms, as there are no real consequences for failing to do so.

Consent Orders

If parents agree on arrangements and want them to be legally enforceable, they can apply to the court for Consent Orders. Consent Orders are legally binding and enforceable orders of the Court. If a party breaches a Consent Order, there is scope for the Court to impose consequences.

What if we can’t agree?

If parents are unable to agree on the arrangements for their children moving forward, they can apply to the Federal Circuit and Family Court of Australia for parenting orders. The Court will make the Orders it considers to be in the best interests of the child and those orders will be legally binding and enforceable.

Family Dispute Resolution (Mediation)

Before applying to the Court for parenting orders, parents are usually required to attend Family Dispute Resolution (or ‘mediation’) to try to reach an agreement. The mediation process is facilitated by an accredited Family Dispute Resolution Practitioner (like our Principal, Jenni).

If the parties are unable to reach an agreement at mediation, the FDR Practitioner can issue a certificate that then allows the parties to apply to the Court for parenting orders.

If the matter is not suitable for mediation (i.e. because it is urgent, or involves family violence or child abuse), a party is not required to obtain a certificate from an FDR Practitioner prior to applying to the Court for parenting orders.

Enforcement of Parenting Orders

If one parent does not comply with parenting orders, the other parent can ‘contravene’ the non-compliant parent and ask the Court to enforce the orders. The Court has several options available to it, including warnings, fines, make-up time with the child, or even changing the existing parenting arrangements.

Seeking Legal Advice

Navigating the complexities of the family law system can be challenging, and legal advice is essential to understand your child’s rights (and your responsibilities) under the Act. Our family lawyers have extensive experience with parenting matters, and can provide advice and assistance to help you achieve the best outcome for your family.

We care about you, and we care about your children. If you’d like to discuss your parenting matter with one of our expert family lawyers, contact our office on 07 5556 6411. We offer a free, no obligation initial consultation, so it won’t cost you anything to find out whether we’re the firm you want in your corner.

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