Following the breakdown of a relationship, it can be difficult to understand what arrangements can be made in relation to your child/ren. This is an introduction to the types of orders that the Court can order and what to do if you and your ex-partner are unable to agree to matters relating to your children.

What if your ex-partner will not agree for shared custody of your child/ren?

In Australia we don’t refer to having “custody” of children. Instead, we refer to a child living primarily with one parent and spending time with the other. If parents reach an agreement for “shared custody” we refer to this as “equal shared care” or simply “equal time.”

Before initiating proceedings, it is recommended you and your ex-partner try every possibility to agree about the parenting arrangements for you and your children. If you have attempted to do so and have been unsuccessful, you can try mediation with an appropriately qualified family dispute resolution practitioner. This can be done with organisations such as Relationships Australia, Relationspace or Legal Aid NSW.

If mediation is unsuccessful, you may obtain a Certificate of Dispute Resolution (also known as a 60i certificate) from the mediator. Generally, this certificate is required before you can initiate proceedings in the Federal Circuit and Family Court of Australia. There are limited circumstances in which the Court deems that mediation is not required. They are:

1. where the application is urgent; or
2. where the proceedings involve allegations of child abuse or family violence, or there is a significant risk of child abuse or family violence; or
3. where the application would be unduly prejudiced; or
4. where there has been a previous application in the same matter in the 12 months immediately before the commencement of proceedings.

Should you wish to initiate proceedings it is best to speak to a lawyer to discuss your prospects of success and to obtain advice about the court process.

What type of parenting orders can I seek?

In short, the Courts have the power to make any order they see fit, so long as it is proper and is in the best interest of the child. There are however two main types of orders that the Court will make in relation to children.

Firstly, the Court will need to establish if an Order should be made to impose parental responsibility on 1 parent or to split this with both.  Parental responsibility relates the exercise of decision-making about major long-term decisions concerning the care, welfare and development of the child. It includes decisions about the following:

(a) a child’s education (both current and future);

(b) a child’s religious and cultural upbringing;

(c) a child’s health;

(d) a child’s name; and

(e) any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent (this is essentially if a parent seeks to relocate with the child).

Flowing from above the next type of order that the Court can make is live with/spend time with orders. These are orders in relation to how much time a child spends with either parent. It is calculated on a fortnightly basis (being 14 days). There are different types of orders that can be made under this heading. They are:

(a) Equal time – this is a structure of time where the child would spend 7 nights with one parent, and 7 nights with the other. The structure of the 7 nights can be different. For example, this can mean 5 nights in Week 1 and 2 nights in Week 2, or it can be block time where the child will spend every Monday after school, until Monday before school in Week 1 with one parent, and Week 2 with the other;

(b) Substantial and significant time – this is a structure of time where the child would primarily live with one parent and spend a variation of time with the other. The amount of time that the other parent will spend with the child can vary due to a range of factors, including work arrangements, age of the child, distances between homes, or any potential risks that a parent poses to the child; and

(c) No time order – this order is only made in exceptional circumstances where one parent poses an unacceptable risk of harm to the child to such an extent that there is no variation of orders that can alleviate that risk of harm. If your ex-partner is claiming that you should spend no time with the child, you should obtain legal advice about what your options are going forward.

There are other incidental orders that can be sought such as special occasion time, school holiday time and communication/telephone time. Typically, the Court will also make facilitative orders, such as orders in relation to changeover, what should happen if there’s a medical emergency, and what type of contact you and your ex-partner should have with each other. If you have any questions about the type of orders that you can seek in relation to your child/ren, it is best to speak to a lawyer.

What if my ex-partner and I have already come to an informal agreement about our child/ren?

A parenting plan is an informal agreement between two parents about matters concerning your children. They are not enforceable unless they have been registered with the Court (see section 63D of the Family Law Act). Furthermore, even in circumstances where the parenting plan is registered with the Court, the plan may be set aside if the Court is satisfied of the following:

1. That the agreement of a party was obtained by fraud, duress or undue influence; or
2. That the parties want the plan set aside; or
3. That it is in the best interests of a child to set aside the plan.

(see section 63H of the Family Law Act)

If you and your ex-partner have an informal agreement about matters concerning your children, it is recommended to obtain consent orders through the Court in order to make those arrangements enforceable. This means that if there is any significant breach of the orders there are avenues available to you to obtain a range of sanctions by filing a Contravention Application. If this occurs, it is suggested for you to obtain legal advice about your prospects of success as the process of pursing a Contravention Application can be quite complex.

Please contact Coleman Greig’s Family Law team if this article raises any questions for you.