Parenting Arrangements in Australia

Australian law does not dictate how you should parent. Courts stay out of parenting arrangements unless parents cannot agree or children are at risk.

Most disputing parents manage to reach agreement and avoid the parenting litigation process, which has been criticised in Australia for its length and for high family court costs.

As a result of this criticism, the country recently trimmed down to two family courts: the Federal Circuit & Family Court of Australia (FCFCOA) and the Family Court of Western Australia (FCWA). Some of the effects of this transition are still playing out.

Note that Australian law years ago changed the vocabulary used to describe parenting arrangements:

• Instead of talking about a child's custody or residence, it refers to whom a child lives with.
• Instead of talking about access to a child, it refers to whom a child spends time with.

You should use the current terms in court and in court documents. However, they're used interchangeably with the old terms in casual settings.

Ways to decide parenting arrangements in Australia

When you split up with your partner, you have three options for deciding how to continue raising your child together.

1. Make a parenting plan

Your first option is to agree with the other parent on a parenting plan, which sets your parenting schedule and other details of child rearing. If you have trouble agreeing, you can use an alternative dispute resolution method to decide the plan's details.

A plan is the most straightforward way to determine parenting arrangements — you do not need a lawyer to draw it up, it has no formatting requirements, you don't need to file it in court, and you can amend it with the other parent at any time.

However, courts cannot enforce a parenting plan. A plan serves primarily to remind you what you decided with your co-parent. It can also function as evidence if you eventually go to court.

2. Turn your parenting plan (or part of it) into a consent order

When you want to make an agreement with the other parent into a court order, you apply for a consent order.

Consent orders have the same effect as a judicial officer's decision after a trial. If you break a consent order you could be issued penalties, up to jail time for repeated offences.

You don't need to attend court to get a consent order, and many parents don't hire a lawyer.

Keep in mind that changing a consent order without the other parent's approval is very difficult.

3. Apply for a parenting order

As a last resort, you can ask a court to make decisions for you.

You will then go through the litigation process to receive a parenting order. Experts strongly recommend hiring a lawyer to represent you.

Before applying for a parenting order, you must make a significant effort to reach an agreement via an alternative dispute resolution method.

Parenting orders create legally enforceable obligations for parents that last until each child involved turns 18.

Factors in family court decisions

Australia has some of the most robust child protection laws in the world. Judicial officers (including judges, magistrates and registrars) seek to protect the best interests of the child, whether issuing a parenting order the former couple did not agree on or a consent order.

Courts presume a child would benefit from:

• Having both parents responsible for the child's care and welfare
• Having parents agree on all major, long-term decisions about the child (known as equal shared parental responsibility)

For these presumptions not to apply, you need to show that they do not hold true in your case.

Keep in mind that when you go to court over parenting arrangements, you do not have to convince 'beyond reasonable doubt' like in a criminal case. Instead, you need only convince the judicial officer that your position is probably right.

Representing yourself in family court

If you plan to represent yourself, which experts advise against, you should still consult with a lawyer at the early stages of your case.

If your case is in Western Australia, review the FCWA's handbook for parents representing themselves. If your case is elsewhere in Australia, review the FCFCOA's information on representing yourself instead.

Government organisation Family Relationships Online can also help you navigate the legal process through its centres or advice line.

Remember that court is a formal setting. Certain rules and etiquette apply:

• Stand up when addressing the judicial officer, unless your appearance is virtual.
• Begin by stating your name and whether you are the applicant or respondent. The applicant speaks before the respondent.
• Remain calm and polite. Do not tut, roll your eyes or display other signs of annoyance.
• Be prepared for the officer to interrupt you and ask clarifying questions.

Child support

The government encourages parents to reach an agreement on child support.

If you cannot agree, you can ask the Department of Human Services (DHS) for a child support assessment.

Where to find the actual family laws

In Australia, the laws governing parenting arrangements and child welfare are in the Family Law Act. Western Australia also has the Family Court Act.

Staying organised throughout custody proceedings

The process of deciding how your child is looked after can require serious organisation. You may need to propose multiple parenting schedules, calculate expenses, keep detailed notes about your child and beyond.

With parenting calendars, an expense tracker, a parenting journal and more, Custody X Change makes sure you're prepared for whatever arises on your journey.

Take advantage of our technology to stay on top of all the moving parts of your new parenting arrangement.

Legal sources

For more help, consider reaching out to one of our sources. The professionals below provided expertise for this guide.

Delaney Roberts
Anna Roberts - Director, Solicitor & Family Dispute Resolution Practitioner
Adamstown, NSW

For Kids Sake
St. Leonards, NSW

Fox & Staniland Lawyers
Fidan Shevket - Director
Sydney, NSW

Hickman Family Lawyers
Ella Hickman - Principal
Perth, WA

Justice Family Lawyers Sydney
Hayder Shkara - Principal
Sydney, NSW

Kennedy Partners
Susanne Khung - Principal
Melbourne, VIC

Mediations Australia
Dan Toombs - Founder, Lawyer
Nationwide

Northern Frontiers Mediation & Counselling
Alex Blake - Co-Founder
Cairns, QLD