Deciding on the living arrangements for the children

Living arrangement agreement between the parents can be reached informally or by the making of a parenting order, by consent through the Local Court, Family Court or Federal Circuit Court.

However, legally, both parents retain joint equal parental responsibility for their children following separation until the court makes a parenting order otherwise.

The court can also make parenting orders dealing with the living arrangements of the children of a relationship with the consent of both parents or as a result of a contested hearing.

What parenting can orders be made by the family court?

The court can make a parenting order that:

• Specifies where the child will live. The order can stipulate that a child lives with one parent only or with each parent, under a shared care arrangement. In either situation, each parent is equally responsible in respect of all other matters affecting the child (unless a court order specifies otherwise).
• Specifies the time the child will spend with the other parent or communication with that parent.
• Deals with all other aspects of parental responsibility such as religion, education, discipline, medical treatment, extra curricular activities and other issues of specific concern to a particular parent or child. Such an order can also be made giving one parent sole parental responsibility in respect of the day to day or long-term care, welfare and development of the child.

What factors are considered by the Family Court in making Parenting Order?

The best interest of the child is the court's paramount consideration in making a parenting order. The Family Law Act states that children have the right to know and be cared for by both their parents and have a right to spend substantial time with both parents unless it is contrary to their best interests.

The Court is first required to consider whether spending equal time with both parents is in their best interests and reasonably practicable. If not, then the Court must consider whether spending a substantial amount of time with each parent is in the child's best interests. When determining what is in the child's best interests, the Court must have regard to the following factors:

• any views expressed by the child, if the child is of a mature age or the Court considers they are mature;
• the nature of the relationship of the child with the parents and any other significant persons;
• the effect of any changes in the child's circumstances;
• practical difficulty and expense of a child having contact with a parent;
• the capacity of each parent or another person to provide for the needs of the child including the emotional and intellectual needs of the child;
• attitude to the child and responsibilities of parenthood demonstrated by each parent;
• child's maturity, sex and background;
• need to protect the child from physical and psychological harm;
• any family violence involving the child or a member of the child's family;
• any other circumstance so long as it is relevant to the welfare of the child;
• whether the Parenting Order is likely to cause either party to pursue further proceedings.

Who can apply for a parenting order?

Generally, the parents are the parties who seek parenting orders in respect of their children. However, any other person who is concerned with the care, welfare and development with the child can also apply, including relatives or other significant persons.

How does a person apply for a parenting order by consent?

Where you can agree upon the living arrangements of your child/ren, you can formalise these arrangements if you choose, by applying for a consent order through the local court, family court or the federal circuit court. You can also choose to keep the arrangements informal by not going through this process. Your individual circumstances will determine whether there are advantages to formalising these arrangements. We would suggest that you discuss this with one of our Family Law lawyers before reaching any decision.

What if parents cannot agree about their childre's living arrangements?

If you cannot agree over the living arrangements of the child/ren, and want the Court to be involved, then an application for parenting orders must be made to either the Local Court, Family Court or Federal Circuit Court.

However, before applying for any parenting orders, you must invite the other party to participate in mediation. If the invitation is accepted, then both parties must pursue mediation to reaching an agreement. If no agreement can be reached, or if the invitation to mediation is not accepted, then an application for parenting orders can be made to Court.

If you require orders urgently, our lawyers will apply for Interim orders for you immediately. If it is not urgent, a directions hearing or case assessment conference will be allocated about six weeks from the date of the filing of the Application.

Before a case assessment conference and directions hearing, both parents will generally be required to attend mediation with a Family Court Family Consultant to attempt to reach an agreement. Both parties are also required to attend an information session at the Family Court.

This information session is conducted by a court officer. He/she will explain the Court proceedings, including the cost and time involved in the court action. Immediately following the information session you and your lawyer will be required to attend a Case Assessment Conference. This is conducted by a Registrar and a Family Court Family Consultant in matters involving only children's issues.

If the parents reach an agreement, the Court can make consent orders following your agreement. Our Family Law lawyers can assist in preparing the consent orders on your instruction. If an agreement has not been reached after case assessment conference, the court will make directions for the ongoing conduct of your matter.

If the matter is conducted in the Family Court, the hearing will take place in a different format to the past. On the first day of the hearing, the parties address the Judge directly and explain from their point of view what concerns them, the proposals they have and why, or what they consider to be the issues. From this, the Judge determines what problems need to be determined to decide the matter, and how evidence will be given.

Note: It is only a minority of parents who cannot agree on arrangements for their children and find it necessary to make an application to a court to decide.

Independent children's lawyers

In some cases, a lawyer can be appointed to represent children in situations where the Court or a parent consider that the children may require their legal representation. This may apply, for example, where the children are old enough to express a view or preference of their own or where there are allegations of abuse. The Court may appoint an independent children's lawyer whether the parents consent or not.

Expert witnesses

In some cases, the Court can direct that a report is obtained from an expert such as a child and family psychiatrist to examine the children and parties. The expert will provide the report to the Court regarding the various factors the Court needs to take into account and where the opinion of the expert is warranted.

How can I change parenting orders?

Parenting orders are not final. They may be varied with the consent of the parties. Alternatively, one of the parties can apply the court to vary the orders. For the court to agree to vary the orders, it must be shown that it is in the best interests of the child to make this change. It is necessary to show that circumstances have changed since the earlier order was formed so as to warrant the court changing the orders.