Parenting After Separation and Divorce
Navigating Custody Arrangements, Parenting Plans, and Consent Orders
The end of a relationship is never easy. However, when you share children with your ex, the complexities of separating can be intensified. Though you’re no longer travelling the same path romantically, your lives remain connected by your coparenting responsibilities.
For some, child custody can be reasonably straightforward, especially when there is clear communication facilitated by an amicable separation. For others, high conflict divorce can lead to protracted custody disputes that end up in Family Court.
The good news is that most separated parents reach agreement on custody arrangements themselves. The right legal guidance can be instrumental in smoothing the path forward. However, the very best child custody outcomes are achieved when both parents focus on what would be in the best interests of their children.
Moving beyond custody
The concept of a parent’s right to ‘custody’ or ‘contact’ is a dated one. In fact, you won’t find those words used in Australian family law any longer. Rather than focusing on parental rights, the law prioritises the right for children to enjoy a meaningful relationship with both their parents, and to be protected from harm.
When discussing parenting plans, you and your ex should carefully consider the individual needs of your child. The desire for 50/50 custody may come from a place of love, but an equitable arrangement in theory can be confusing or impractical for the child in practice. For example, if work commitments mean one parent is frequently home late, on call, or interstate, can that parent realistically provide 50% of the care?
Separation and divorce can be emotionally fraught. It’s important to remember that what you want and need from the parenting arrangements may not be what is truly best for your child.
If your decision-making is clouded by negative feelings about your ex, you’re not alone. Our certified divorce coach can help you move beyond anger and hurt so that you can make good decisions for your child’s future.
Understanding Your Options
As you transition into life after separation, you and your ex will need to decide on the best way for your children to maintain an ongoing relationship with each of you. This arrangement will look different for every family. When you both keep the best interests of your children at the centre of your decisions, reaching a custody agreement can be easier. It will also mean you can avoid going to court.
Sometimes an amicable agreement is out of your hands. In high conflict situations, or when safety is a factor, it may be necessary for custody arrangements to be decided in the Family Court.
No matter your circumstances, our family law specialists can help you decide how to proceed with parenting arrangements for your children. There are several options available to you.
A parenting plan is a written document outlining arrangements for the care of your children. The level of detail included is up to you and your ex, but your plan can include the responsibilities of each parent, living arrangements, and details pertaining to routines, education, medical care, and so on. The document is typically signed and dated, but it doesn’t require application to the Court and is not legally binding.
If your separation is amicable, you may be able to create a parenting plan together. Alternatively, an impartial third party such as a counsellor can oversee negotiations when developing the plan. A parenting plan is a useful record for both parents, providing clarity around responsibilities and expectations.
Note: You can apply to the Court to turn your parenting plan into a parenting order. A parenting order (also called a consent order) is a written agreement that is approved by a court.
A parenting order is a formal and legally enforceable arrangement for the future care of your children. You can apply to the Federal Circuit and Family Court of Australia to make your order.
Parenting orders can cover a range of topics and typically seek to address problems that may arise from family separation. The level of detail included in a parenting order may be influenced by the level of conflict that exists between the parents. A detailed parenting order can provide clarity for both parties.
A parenting order can cover:
- Parental responsibility
- Living arrangements
- Special occasions
- Education and extracurricular activities
- Medical care
- Communicating about the child
- Parents’ behaviour with the child
- Interstate and international travel
- Different arrangements for different children
In most cases, a parenting order will only be granted after you have participated in Family Dispute Resolution.
Family Dispute Resolution
It may surprise you to know that Australian family law is designed to keep parenting disputes out of court rooms. When separating parents can’t agree on arrangements for their children, Family Dispute Resolution (FDR) is a low cost and practical mediation option. A neutral FDR practitioner facilitates discussions about points of dispute, encouraging negotiation, and a resolution that centres the best interests of the child. The goal of FDR mediation is for parties to agree to parenting arrangements without the need for long and expensive court proceedings.
Allegations of Family Violence or Child Abuse
If you or your children have experienced family violence and abuse, the court can make arrangements to protect your safety. This may include allowing you to apply for a parenting order without undergoing FDR mediation first.
For immediate support, please call 1800-RESPECT or 000 for police assistance.
Planning For Co-Parenting Succes
Regardless of whether your separation is amicable, high conflict, or somewhere in between, seeking legal advice is an important step in planning for a future that secures the wellbeing of your child.
Our team of Brisbane family law specialists can provide legal expertise and additional support services to help you make the best decisions for your child.
This is a question people ask a lot. A similar question is “When can my child decide if they want to see the other parent?”
The simple answer, once they turn 18 years old.
However, until the child reaches adulthood, decisions regarding their care are for the parents to make. Judges have been critical of parents giving children the power to choose, viewing it as forcing the child to make adult decisions. As children become older and more mature, their wishes hold more weight in court. However, they are never the only factor taken into account.
For example, the 14-year-old who wants to live with Parent A because Parent B makes him do his homework and eat vegetables, whereas Parent A lets him stay up late, eat junk, and play computer games, is not necessarily making a decision that is in his own best interests.
If parents cannot agree on the best arrangements for their children, then a judge will make the decision and parents are expected to abide by it, even if it means forcing a child to do something they say they do not wish to do, because it has been considered to be in their best interests.
If you have parenting orders in place, there may be restrictions contained in those orders about where the children can travel.
You cannot take the children to live anywhere that would make it significantly more difficult for them to spend time with their other parent. You can take your children on holiday anywhere within Australia, without requiring the consent of the other parent, unless your orders state otherwise.
If you have orders in place, or an application has been filed seeking parenting orders (custody or access), then it is a criminal offence to take the children from Australia – or fail to return them by the agreed date – without the written consent of the other parent or a court order.
It’s very normal for children to feel sad when their parents separate. However, if both parents are committed to keeping conflict to a minimum and putting the best interests of the child first, separation doesn’t have to cause long term harm.
However, research shows that kids and teenagers are negatively impacted when their parents remain locked in bitter conflict that never gets resolved. Sometimes conflict is unavoidable, but you can protect your kids from being caught in the middle.
Separation is fraught with emotion, but making decisions based on short-term feelings can have long-term consequences for the wellbeing of your children. If the emotional toll of your separation is becoming overwhelming, you don’t have to manage alone. From psychologists to divorce coaches, professional support is available that will empower you to manage conflict better and make parenting decisions from a calm and rational place.