Following separation, reaching agreement on appropriate arrangements for the care of a child or children is a priority of the parents.
A formal agreement around the care arrangements of a child is often not necessary. If however a written agreement is required, it can be recorded informally as a parenting plan or, by way of parenting orders made by the Federal Circuit and Family Court of Australia (the Court).
A parenting plan is an informal written agreement between parents about the arrangements of the child, which is not legally binding. Parenting plans can be altered at anytime by agreement between the parents and that flexibility can be advantageous.
Parenting orders are made by the Court and provide for the child’s parenting arrangements in a more rigid and legally enforceable way. They can be made as agreed between the parents (by consent) or as decided by the Court where the parents cannot reach agreement.
What is the law around parenting arrangements?
The relevant law in relation to the care of a child is the Family Law Act 1975 (Cth) (the Act). It states that the most important matter when determining a dispute about the future care of a child, is the best interests of the child.
The Act sets out considerations for determining what is in a child’s best interests. The law changed on 6 May 2024, and the list of factors which the Court must now consider is as follows:
- What arrangements promote the safety of the child and the child’s carers, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm.
- Any views expressed by the child.
- The developmental, psychological, emotional and cultural needs of the child.
- The capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs.
- The benefit to the child of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
In considering the above matters, the Court must take into account:
- any history of family violence, abuse or neglect involving the child or a person caring for the child; and
- any family violence order that applies or has applied to the child or a member of the child’s family.
For an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture is given particular importance.
What parenting orders can the Court make?
There are three main concepts under the Act in relation to children, which the Court can make orders about.
- Joint decision making about long term issues. Until 6 May 2024 this was called “parental responsibility”. It relates to the responsibility of decision making in relation to a child’s long term care, welfare or development such as a child’s schooling, health and religion.
- With whom and where a child lives. This is the parent or carer who the child primarily resides with.
- With whom the child spends time and how often. This is the parent or carer the child spends time with.
Joint decision making
When making parenting orders, from 6 May 2024 the court no longer starts with the presumption that it is in a child’s best interests for the parents to have “equal shared parental responsibility”. The presumption was removed due to a misconception amongst the community that “equal shared” parental responsibility accorded to a child spending equal time with parents.
The court will now tailor decisions about parental responsibility (renamed as “joint decision making” about long term issues) to the circumstances of the particular child and their parents or carers.
Unless otherwise ordered by the Court, if it is safe to do so, parents of a child are to consult with each other about major long term issues in relation to the child and, when doing so, have regard to the best interests of the child as the paramount consideration.
Relocation – can I move intrastate, interstate or overseas with children?
Moving your child or children intrastate, interstate or overseas is referred to as a ‘relocation’. If you wish to relocate with your child and the relocation is likely to impact the time the child spends with the other parent, you must have agreement with the other parent to do so. This is because deciding where a child lives, is a significant long term decision.
Where one parent wants to relocate and the other does not, the parent who wishes to move may apply to the Court for an order permitting them to move. Where a parent relocates without the agreement of the other parent, that other parent may apply to the Court for an order to bring the child back to where they were previously living.
Relocation is complex where parents do not agree. We recommend seeking legal advice to understand what is legally required of you and to assess your circumstances to determine an appropriate course of action.
How Moores can help
Our empathetic approach and expertise will help to guide you through the process and determine the best arrangements for your children.
Contact us for more detailed and tailored help or get started with the Moores Family Law online assistant. The service is confidential and free, you’ll get valuable feedback and a personalised separation plan.