Children are enormously resilient. If they are appropriately supported during separation, and if post-separation parenting arrangements are consistent with their social and emotional needs, children will adapt quickly and effectively.

Studies show, in fact, that it is high conflict at separation that causes more damage to a child than divorce or separation itself. Children exposed to too much parental conflict do worse in school, suffer worse mental health into and through adulthood, and are less likely to form good adult relationships themselves. Delays in cognitive development can result also.

The answer is for both parents to work hard at achieving child-focused parenting before, during and after separation. If you manage to do this effectively – well, really, the children will be OK.

Most children, even young ones, will have views about the separation and about arrangements being made for their care. Though you might decide not to act on it directly, this information can be really important to the design of your post-separation arrangements for their care.

Children should never be interrogated about their views and experience but rather should be carefully invited to share their feelings and thoughts about what should happen if they want to.

Practically speaking, older children may end up doing what they want to do, whatever formal arrangements might be made around them.

It can be very hard to hear what a child might say. 

It can also be very important for the child to be given a safe opportunity to say it. 

The fundamental principles built into Australian family law include:

• Children have the right to know and be cared for by both their parents.
• Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other significant people (such as grandparents and other relatives).
• Children and the people who care for them must be safe from harm.  
• Parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
• Parents should agree about their parenting.
• Children have a right to enjoy and share their culture.

These principles are defined as the underpinnings for the Family Law Act. Strictly speaking, they don’t apply to people who are not in litigation. But they may be useful as anchor points in mediation and negotiation. And if by chance you do end up in court, your behaviour might be judged retrospectively in accordance with them.

There are no rights for parents, or for any other relatives, to see or to spend time with children under Australian family law. All the rights belong to the children.

What is parental responsibility?

Parental responsibility is the duty and power to make decisions about the care, welfare and development of a child. It covers both the big issues and the small issues, from deciding on medical treatment to signing permission notes for school excursions. A person with parenting responsibility is responsible for every aspect of the care of a child, unless there are court orders or a parenting plan about specific issues.

But it is mostly about the major, long-term issues–such as making decisions about school placement, health treatment, the name of a child or a passport application–that the world is most concerned about when the question ‘who has parental responsibility’ is raised.

Who has parental responsibility?

Biological parents have joint parental responsibility from a child’s birth, whether they marry, live together, separate or divorce.

Adoptive parents acquire parental responsibility upon adoption.

Parents under surrogacy and artificial conception procedures also have parental responsibility.

But step-parents and grandparents do not have parental responsibility unless there is an order of the court that expressly provides for this.

Good post-separation co-parenting can look a lot of different ways but successful arrangements tend to have:

• Consistency. A regular routine. So that everyone can rely on ‘what’s happening when’.
• Flexibility. Changes to the usual arrangements to accommodate each parent and the child are inevitable. You should discuss how to manage this.
• Communication systems. This is vital. Even if you are deep in conflict, you will need methods for exchanging parenting information. Think telephone, email, social media, a ‘parenting book’ that travels with the child, talking at changeover, regular meetings and the new and excellent co-parenting mobile apps.
• Decision-making arrangements. It is likely you will both have parental responsibility. How are you going to exercise it? Will you jointly make the big decisions e.g. about health and schooling? Is one parent responsible for specific issues? How will you resolve disagreements? Methods could include meeting for discussion, seeking a third party’s opinion, seeking the views of the child, mediation or counselling.
• Support from both parents for each other. Children may need a bit of encouragement by one parent to maintain and develop their relationship with the other. A parent-child relationship is for life and will have an enormous impact on life outcomes. You can be part of making this worse or better for your child. This is important to consider, whatever your own feelings about the other parent might be, and whatever you think about their capacities as a parent.
• Arrangements that suit the child. New co-parenting arrangements shouldn’t restrict the child’s own developing life and identity: their possessions, friendships, activities and personal order.

There are no ‘standard’ arrangements for parenting after separation, although some arrangements are more common than others.

Every second weekend

One popular parenting arrangement is for the children to live with one parent and to spend time with the other every second weekend, usually with at least one overnight stay. Some parents arrange the weekends so that time can be spent with each of them. Some people arrange for longer weekends with the parent the children don’t usually live with. Sometimes there is additional non-overnight time–time after school, maybe dinner and a bath– to that parent in the off-week.

Every weekend?

Arrangements where one parent spends every weekend with a child are not common because this would often mean that one parent couldn’t spend any extended leisure time with the child, with the other having no opportunity for independent weekend social activities.

9/5-night split over the fortnight

Arrangements for near-to-equal time–for example, the nine-night/five-night split–are quite common.

This may require that both parents have more flexible working and childcare arrangements and live reasonably closely to each other and/or schools and other child activities.

Special days

You and your partner might wish to discuss these other frequently agreed arrangements:

• Mother’s Day and Father’s Day with the relevant parent, although perhaps not overnight
• Alternating the Christmas Day location each year or by dividing the day itself
• Half of each school holiday with each parent
• Public Holiday Mondays with the parent the child stayed with on the weekend before
• Alternating child’s birthday dinners location each year
• Halving or alternating Easter holidays
• Communication

You should discuss the frequency, timing and mode of other forms of communication–phone calls, email and texting–between parents and children. There might be a need for new devices and accounts for children’s use.

Consider the use of a parenting book or parenting apps for regular parental communication.

Changeover

You will need to talk through arrangements for moving the children between the households. Lots of people changeover at the beginning and end of school time. If conflict is still an issue, you might want to meet and changeover in a public place to ensure safety, at least until feelings cool.

Because of the difficulty for the child of ‘two homes’ and the coordinating difficulty for the parents, courts are reluctant to order ‘equal time’ with the child to both parents unless:

• There are clear arrangements in place for a full and settled life for the child (space, possessions, clothes, friends, school, activities) in both places.
• The child doesn’t need to travel far between homes.
• The parents have the capacity to communicate effectively with each other (necessarily, we are talking about low-conflict parents here).
• Each parent’s capacity, willingness and lifestyle flexibility to give the necessary time and attention to caring for the child.

50-50 shared care can work really well if all of these requirements are met.  If they are not, 50-50 can be hard.  Certainly, 50-50 can play havoc on the parents’ efforts to create new and independent lives.It is difficult to commit to new activities and work arrangements when half of the time you will have caring responsibilities. But it can be particularly hard on children, who are endlessly on the move between two separate worlds. Try to be clear in yourself about whether this is in the children’s best interests.

Parental alienation is a developing doctrine in Australian family law that refers to the action of one parent attempting to damage the relationship of the child with the other parent. It is currently being dealt with quite severely by the courts.

The major concerns about the other’s parenting styles and capacity that you both have, and these are common to many people, should feature centrally in your agreement about parenting arrangements.

The law has been a bit tentative about creating ‘mandatory parenting behaviour’ under family law. It can be a delicate matter to craft parenting agreements that mean that, say, that a mother is legally obliged to see her child on Mother’s Day, or that Dad is legally bound to spend time with a child on Sunday.

Changes in arrangements that result in the unexpected absence of a parent can be desperately disappointing for a child.

Although enforceability will always be an issue, it is possible to draft an agreement that emphasises compliance with agreed arrangements.

Unreasonably worried parent on the one hand or genuinely incapable parent on the other? Or both? Or neither? Working together and open communication is key here, although there are other techniques, such as graduating stages in time spent and changes in types of time (e.g. daytime vs overnights vs weekends) that might help support changes towards less anxiety and greater parental capacity. A parent who is genuinely struggling may even appreciate a supportive, non-critical, joint problem-solving approach from the other parent. On the other hand, this might be seen to be, and may in fact be, unnecessary interference. It is OK to be a parent on a learning curve.

There is some debate about the age at which a young child should begin spending overnight time with a parent who has not recently been the primary carer. The current answer: it depends. On the court, on the child, on the parents, and, if the matter went to court, on the specific evidence that was brought.

A confident, capable non-primary-carer parent could manage overnight with a baby. Others might prefer to wait until the child was 2 or 3 or 4. A court might agree here.

Usually parents try to arrange that time away from the mother of a very young or breast-fed baby takes place more frequently but for much shorter periods (say, two hours at a time).

If the court has concerns for the welfare of the child in the sole care of one parent, it may order the parent to spend time with the child in the presence of a supervising third party.

It is common that a child may resist leaving their usual carer or place of residence. This may indicate a serious issue or it may not. It is important, firstly, that the child’s views are heard and acknowledged. But if a court was considering the issue, it would do so from the larger perspective of the child’s best interests, which includes, as a primary consideration, the importance of both parental relationships. If a child does not spend time with a parent, that relationship will suffer and so, might say the court, will the child’s best interests. On the other hand, the particular circumstances of the family might generate a different assessment.

Children may start to express preferences about whether and when they will spend time with a parent as they get older. Most parents accept that parenting arrangements must change as children get older (although some, surprisingly, do not).

Whatever the parent’s preferences might be, it is a usual fact of a child’s development that their independent social life and extra-curricular activities will grow and become more important to them gradually – and not just in the teenage years. Where these changes can be anticipated, appropriate changes in parenting arrangements should be discussed and agreed, if possible, in advance.

Life changes happen out of the blue. There is miscommunication. Prior arrangements fall apart. Everyone gets upset. This is bound to happen sometimes. Flexibility and good communication will help you through these times but you can try to minimise their frequency with clear arrangements: in writing and in higher levels of detail if there are higher levels of conflict. You might need to negotiate specific arrangements for all foreseeable types of special days and ‘what ifs’ (what if the child is sick and can’t go to school – who should take time off work?).

The term changeover refers to the transfer of care and control of the children from parent to parent. This time can be valuable for the parents to communicate about children’s issues. Unfortunately, however, it can also be an opportunity for fighting, abuse and emotional behaviour.

When conflict at changeover is or is likely to be a feature of your parenting after separation, consider changeover arrangements for your parenting agreement that would be less likely to permit conflict.

In all capital cities, and some regional centres, there are community organisations that may be able to help fee-paying families with changeover. They are often heavily booked. Try to register your interest at the earliest possible time if this type of service will be important for you.

From time to time, because of family violence, child abuse, substance abuse, mental health issues, child vulnerability, parental capacity or a myriad of other reasons, one or both parents believe that one of them should have support during the time they spend with the child. Their parenting agreements, then, provide for ‘supervision’ which refers to another supportive adult being present during the time they spend with the child. This is often a grandparent or other relative or a trusted friend.

There are also community and private services that provide supervision services.

It is often the case that the parent having care of the child pays for all the costs arising from the care including holidays away.

Alternatively, parents might have in place arrangements to share the cost in certain proportions, depending on the parents’ financial resources and the child’s best interests.

But issues with costs often do arise. Travel costs are often an issue. So are costs associated with extra-curricular activities, clothes, health treatments including orthodontists, schooling and alternative therapies, especially where the parents differ on the child’s need for the expenditure. Again, it is better to have addressed as many contingencies about cost sharing as you can before problems, and then additionally, have a general dispute resolution procedure in place.

Often, too, when a child spends overnight time in different households, issues arise about responsibility for purchasing a child’s clothes, where the clothes are kept, and who will wash them (and when). Similar problems can arise about toys, video games, sporting equipment, and IT. These micro-disputes, again, deserve specific discussion before they develop into big ones. Although some movement of children’s clothes and favourite items may be inevitable, many parents find, initially at least, that having two sets of clothing and toys is best.

Over time, the heat in such issues tends to fade with the reduction in the level of conflict and the establishment of workable day-to-day routines.

Many parents make their own arrangements for post-separation parenting. A private agreement specifying parenting arrangements may or may not be in writing. (A big hint: it is much more likely to lead to sustainable post-separation parenting arrangements if it is.)

If it is in writing, the agreement could usefully take form as a parenting plan. Parenting plans are cheap, quick, easy to make and easy to vary. Since changes to the law in 2006, they can be used to override previous court orders. The downside is that, in themselves, parenting plans are not enforceable under the law.

A parenting plan may be negotiated between the parties themselves or with the assistance of a counsellor, family dispute resolution practitioner or lawyer.

An alternative method of formalising parenting arrangements is by applying for parenting consent orders. In their essential content, parenting consent orders are like a parenting plan, but they are legally enforceable. They are much more complicated to obtain, however.

Lastly, if all efforts at making a private agreement fail, the parents can apply to the court as disputing parties for judge-made orders specifying the arrangements.

Parenting plans are a cheap, quick and a very effective method of clarifying and settling the agreed rules, structure and principles of your joint parenting effort, going forward. They can address any issue or idea that concerns either of you, in your own words. They are easy to make and to change.

Though your personal relationship may have come apart, you will jointly parent your children until they are grown. Care and time and emotional energy expended in preparation, agreement, implementation and maintenance of a comprehensive parenting plan is an investment that almost guarantees a better outcome in that long-term, and necessarily cooperative, parenting project.

A private agreement specifying parenting arrangements may or may not be a parenting plan.

A parenting agreement is a parenting plan only if it meets certain technical requirements under the family law. A parenting plan must:

• be in writing
• be signed and dated by both parents
• address certain parenting issues (see below)
• not be made under any threat or coercion.

You can negotiate a parenting plan directly with the other parent or with the help of a family dispute resolution (mediation) practitioner.

A parenting plan is not legally enforceable. But the action of discussing, negotiating and agreeing a parenting plan clarifies issues, problems and solutions towards the ideal of workable, cooperative parenting like no other means.

If you need more enforceability for your parenting arrangements than a parenting plan provides, you will need to agree on parenting consent orders.

But parenting plans can have a significant legal impact on court orders. For more details keep reading…

A parenting plan can deal with one or more of the following issues:

• where the child will live
• the time the child will spend with certain people (obviously, with each parent, but also with other significant people, like grandparents)
• the allocation of parental responsibility, including responsibility for making decisions about major, long-term issues
• procedures for consultation and decision-making
• what communication the child will have with certain people
• how expenses will be managed
• how disputes will be resolved
• the process for varying the plan, especially as children get older, and
• any other aspect of the child’s care, welfare and development or about their future joint parenting, that the parents might wish to include.

Talk to Tribe about preparing a parenting plan yourself or about Tribe preparing a tailored parenting plan for you.

Family mediators are trained in the maxim that they should aim to match the level of formality of the parenting agreement with the level of conflict between the parents: more conflict=more structure. Structure and enforceability should rise to support a highly conflicted couple.

In the case of conflict, particularly, or if one or more of the parents needs more rigour or certainty, a parenting plan might not be enough. A parenting plan, after all, can simply be ignored – although most people who go to the trouble of making one are unlikely to do this.

The process of consent orders provides the middle ground between an unenforceable parenting plan and applying to the family court for orders about disputed parenting arrangements.

First you must negotiate and define parenting arrangements as you would if you were preparing a parenting plan. In fact, you need to prepare and both sign and date what is essentially a parenting plan with a different name. You can call this document the ‘minutes of consent orders’.

That document, then, is filed with an application for consent orders in the Federal Circuit and Family Court of Australia ‘application for consent orders

The application is reviewed by the court (in its offices, without a face-to-face hearing) and if the arrangements for the child are deemed to be satisfactory, the court issues the parenting arrangements in the form of ‘consent orders’.

This means that the arrangements you agreed and signed-off on in your minutes of consent orders, now have authority as enforceable orders of the court.

Parenting plan vs Consent orders

	Pros	Cons
Parenting Plan	Easy to make and vary.Promotes good communication and cooperative parenting.	Not legally enforceable.
Parenting Consent Orders	More structure for higher conflict couples.Enforceable.	More complex to make. Hard to change (if there is a dispute).Enforcement may be difficult.

If final consent orders are breached by one parent, the other can take legal action for ‘contravention’ (breach) of the order.

This extra level of structure, authority and oversight can be very helpful for a couple or a parent that might otherwise struggle to follow-through with agreed arrangements.

The process and documentation for applying for consent orders is a little complex, though it can readily be achieved with legal advice and support.

Once consent orders are made, they are fixed and will usually not be changed by the court, unless the circumstances change significantly. This means that you should try to consider future issues and changes necessary as the children grow, upfront.

The good news about possible changes, however, is that if you can agree them with the other parent, you can make a parenting plan that has the legal effect of varying your consent orders.

These are all technical issues, about which it would be best to talk with a lawyer. Please reach out to Tribe to discuss your options around parenting consent orders.

Talk to Tribe about whether consent orders are a good fit for you and for assistance with drafting parenting consent orders.

The Australian court system is heaving under the weight of the huge number of disputes about residence and parental time with a child, despite that this is a personal and distinctly human problem that courts are not best placed to deal with.

If you need to hash through disagreements about parenting, the place to do this is in family dispute resolution.

You don’t have to have a lawyer to achieve any process in Australian family law. The law and the system are not easy for lay people to navigate but it can be done, and with good outcomes. Many people achieve this. On the other hand, and depending on the issue, you might really struggle without professional assistance.

It is important to at least orient yourself and your circumstances within the law initially. Speaking to a lawyer early in the process about how the law would see your case if you were unable to come to agreement is definitely a good idea.

After that, in most cases, it is useful to at least try to negotiate agreement on parenting and property matters yourselves, without lawyers present.

If you need additional support from that point, and many people do, you can then also engage a mediator or family dispute resolution practitioner as a neutral ‘umpire’ to help you reach agreement.

Family dispute resolution (FDR) is a model of mediation designed to bring parents to agreement about parenting arrangements after separation.

In an FDR session, a neutral third party, the FDR practitioner, facilitates a discussion between you and the other parent. They help you to resolve differences, to negotiate, to generate options for solutions, and to come to agreement about parenting arrangements.

You will firstly go through an intake process, where the basic facts about the parents and the children are gathered. Then there is usually a pre-mediation session, where you meet with the nominated FDR practitioner privately and speak openly about what you want to achieve and identify the issues. The practitioner will likely ask you if you have received any legal advice on your position in relation to the issues and recommend that you get some if you haven’t already.

The first joint session for the parties takes place after the mediator has met privately with both parties.

Usually, the first joint discussion takes place face-to-face between the parties, but depending on the circumstances and the service provider, the mediation can take place between two rooms (known as ‘shuttle mediation’), by video or by telephone. Specialist FDR models are developing all the time, including to support families where domestic violence has been an issue and where there are other special needs. You should raise any concerns with the mediator about this in your pre-mediation session.

A joint session might take anywhere between two and five hours, depending on the parties and the mediation service provider. Depending on the duration of the sessions and a whole range of factors around the issues and the parties, there might be two to five sessions.

You can find good quality FDR services at all price points. There are publicly funded and subsidised services available from Family Relationship Centres, from Relationships Australia, Uniting Care, Legal Aid and many other community services in every state and territory.

There are also private mediators and FDR practitioners, who are often lawyers. The fees for these services are much greater than those for the publicly funded services, but are usually much less than for legal services, and often with a more sustainable result.

It is important to check that the FDR practitioner is registered and able to provide the legally recognised certificates (called Section 60I certificates) about the outcome of the mediation.

If there is a history of family violence, including in its forms as emotional and financial abuse, the power imbalance between the parents may be too strong to permit the ‘meeting of minds’ that genuine agreement represents. There might be settlement—but it may be that one party is simply giving in (or giving up). Sometimes, also, one party is much more interested in coming to agreement than the other who may not be truly negotiating, then, in good faith. In other cases, the parties might discover that the technical, legal or financial issues in the case are beyond the expertise of the mediator.

If any of these circumstances applies, stop mediating immediately.

Talk to Tribe about reaching agreement with your former partner on parenting arrangements without a lawyer representing you. We can help. (This is actually why we exist!)

We can help also with the decision to go to FDR, providing legal advice about your parenting issues, and help with your negotiation strategy. See our legal service product Parenting Legal Advisory Clinic for more info.

Unless you have parenting orders that state that the other parent’s prior approval is required, there is no legal reason preventing you from travelling anywhere with a child, without the other parent’s knowledge or consent (assuming you have parental responsibility for the child).

But it is common and expected practice for separated parents to notify each other before any travel with a child. Explain the dates you will be away, where you will be, and how you or the child might be contacted. This may be an explicit term in the parenting agreement or not. In any case, you should do this. Otherwise, you risk panic and false assumptions and possibly even court action, when the remaining parent is surprised and confused by your and your child’s absence.

If a parenting order preventing or limiting overseas travel is in force, or if court proceedings for such a parenting order have been commenced, it is illegal to take a child out of Australia without a specific court order or the other parent’s written consent.

If there are no such parenting orders in force, or proceedings in train, then provided you have parental responsibility and the child’s passport, there is no legal barrier to your departure. If the other party objects, however, you may be risking future court proceedings.

If you have applied for family court orders preventing or limiting overseas travel or if there are recovery orders or any parenting orders already in force that prevent or limit overseas travel, you may apply to have your child details entered on the Family Law Watchlist operated by the Australian Federal Police.

The standard requirement for the issue of a child’s passport is for written consent of each person who has parental responsibility for the child.

This can be varied in ‘special circumstances’ at the discretion of the Department of Foreign Affairs and Trade. Those circumstances include the existence of child welfare orders, inability to contact a parent for a reasonable period of time, and the absence of contact with a parent for a substantial period of time. There is a procedure and a special form for applying for consideration of special circumstances. The Department warns however that permission of this type will not be readily granted, especially where it is apparent that a court order would be more appropriate.

You can apply for a court order that permits overseas travel and the issue of a passport without one parent’s consent. This is a form of parenting order and the usual considerations of the best interests of the child will apply.

If you have a court order for sole parental responsibility you will have authority to make all the major life decisions for a child, including applying for a passport.

Connect with Tribe for legal advice on overseas travel with a child.

Parents often want to move geographically, after a relationship breakdown and to take their children with them. This can be for many reasons: some practical, some work-related, some about starting a new life or getting more support. But the law is very concerned about the pressure that distance places on the relationship of the remaining parent with the children, and the disruption of relocation on a child’s life. Depending on the circumstances, the court may make orders preventing relocation of the parent with the child.

Relocation presents one of the most difficult problem sets for the family courts to resolve as there is often an unresolvable conflict of interests involved.

There are no specific rules about relocation in the family law. The court decides about relocations as it does about any other parenting dispute: it applies the ‘best interests’ (of the child) considerations in the circumstances of the particular case.

This does not mean that the needs of the parents are irrelevant however. If the relocation is necessary for a parent to be able to continue to care effectively for the children (for whatever reason), and there are no other arrangements that might be suitable, a court might agree that relocation is unavoidable.

On many occasions, however, courts have ordered a departing parent to stay where they are or to return.

First things first. Honestly consider the effect of the relocation, the possible loss of relationship with the other parent, and the disruption of school and other life supports, on your child.

Then talk to the other parent. You might want to do this in mediation, as discussions about relocation can be heated and difficult. Explain your reasons for wishing to relocate. See if there is any workable alternative to current parenting arrangements, including about travel by the children.

If the other parent agrees to the relocation, get this in writing, preferably in the form of a signed-up parenting plan containing a complete revision of parenting arrangements including residence, ‘time spent’, communication and possibly also, travel expenses.

If the other parent does not agree to your relocation, and you believe that the move is in the best interests of your child, you can apply to the court for an order permitting your move.

The first step is to consider the best interests of the child in the context of the other parent’s wish to leave.

Next, talk with the other parent, perhaps in mediation. Try to understand what the real motivation for the move is. If there is financial or other pressure, are there any feasible new arrangements that could relieve it?

If you cannot come to agreement, and the other parent clearly intends to leave, and you believe that this will not be in the best interests of your child, you can apply to the court for an order preventing their move.

You can apply for an urgent order, called an injunction, if the move is imminent.

Connect with Tribe for advice on going to court in a relocation dispute.