Parenting

If you and your partner have separated, you will need to decide the parenting arrangements for your child.

If it is safe, you should try to reach an agreement with your ex-partner. This is the quickest and easiest way to make a parenting agreement.

If you can’t agree on the parenting arrangements for your child, you will need to attend mediation before you can go to court. In some limited circumstances, you may be able to go straight to court.

Before you apply for court orders, you should get legal advice.

Parenting after separation

The law does not tell you how to care for your child after separation. You and your ex-partner are responsible for deciding the parenting arrangements for your child, including:

• where your child lives
• where your child goes to school
• what medical treatment your child receives.

You both have the responsibility to make decisions about any major issues or events regarding your child. You share this responsibility regardless of what type of relationship you were in, if at all.

You can exercise this responsibility jointly or separately. 

If it is safe, you should consult with each other about these issues and make decisions that are in the best interests of your child.

Sharing parental responsibility doesn’t necessarily mean you will spend equal time with your child, unless you agree to this, or it is ordered by a court.

Parental responsibility does not cover the day-to-day decisions about the care of your child, such as what your child wears and eats. The parent who is caring your child has the responsibility for making these decisions. You don’t have to consult with each other about these issues, however, you can if it will help you to carry out your parenting arrangements.

While you decide your parenting arrangements, you may also need to discuss child support.

For more information, see Child support.

Making an agreement

If you and your ex-partner can agree on the parenting arrangements for your child, you don’t need to go to mediation or apply for court orders. You can make an informal agreement or a parenting plan.

If you want an agreement that is legally binding, you can apply for consent orders.

For more information, see Parenting agreements.

Mediation

If you and your ex-partner can’t agree on the parenting arrangements for your child, you must take genuine steps to resolve your parenting dispute before you can apply for parenting orders.

You must:

• attempt a type of mediation called Family Dispute Resolution, and
• write to your ex-partner to identify the issues still in dispute, make a genuine attempt at resolving your dispute, and state the orders you will seek if you apply for parenting orders.

These steps are known as pre-action procedures.

In limited circumstances, you may be exempt from following the pre-action procedures where:

• your matter is urgent
• there has been, or there is a risk of, child abuse or family violence
• you or your ex-partner cannot participate effectively in mediation
• your ex-partner has breached a parenting order that was made within the last 12 months, and there are grounds to believe that your ex-partner has shown a serious disregard for their obligations under the order.

If you think you are exempt from the pre-action procedures, you should get legal advice.

For more information, see Mediation.

Going to court

If you and your ex-partner can’t decide on the parenting arrangements for your child, and you have followed the pre-action procedures, you can apply to the Federal Circuit and Family Court of Australia or Local Court of NSW for parenting orders.

This is an option of ‘last resort’ as it is the most expensive, and time-consuming way to make parenting arrangements.

For more information, see Going to court.

Grandparents and extended family

Under the law, a child has a right to regularly spend time and communicate with people significant to their care, welfare, and development, such as grandparents, relatives and members of extended families.

Grandparents and a person concerned with the care, welfare and development of a child can apply for parenting orders, including an order to spend time with a child.

However, before you apply, you must follow the pre-action procedures unless you are exempt.

For more information, see Are you a grandparent? Your legal questions answered.

Changing your parenting agreement

The easiest and cheapest way to change your parenting agreement is to negotiate a new agreement with your ex-partner, where it is safe for you to do so.

If you have an informal agreement or parenting plan, you can change it at any time by making a new agreement.

If you have parenting orders (including consent orders), you can also change your orders at any time by making a new agreement with your ex-partner, unless an order says otherwise. You can do this by:

• making a parenting plan, or
• applying for consent orders.

As a parenting plan is not legally enforceable, you can’t create new legal obligations or change existing ones by making a parenting plan. If you change a parenting order with a parenting plan, that order will no longer be legally enforceable once the parenting plan has been signed by you and your ex-partner. If your ex-partner doesn’t follow the terms of the parenting plan it cannot be enforced, and they can’t be punished by a court for breaching the parenting plan. If you want to make changes to your parenting orders that are legally enforceable, you will need to apply for consent orders.

Before you update your parenting orders with a parenting plan or consent orders, you should get legal advice. It is important you understand what your legal obligations will be under your new agreement and how the changes will affect any orders that you want to keep.

If you and the other parent can’t agree about how to change your parenting orders, you will need to follow the usual process for resolving parenting disputes and comply with the pre-action procedures, unless you are exempt.

If you and your ex-partner still can’t agree, you will need to apply to the Court to change your parenting orders. The Court must not reconsider your parenting orders unless:

• there has been a significant change of circumstances since your parenting orders were made, and
• in all the circumstances, it is in the best interests of your child for the Court to reconsider your parenting orders.

For more information, see Changing parenting arrangements on the Federal Circuit and Family Court of Australia website.

If you change your parenting agreement and you have a child support assessment, you must notify Services Australia within 28 days as this may affect your child support assessment and entitlements to Centrelink benefits.

For more information, see Child support.

Breaching a parenting agreement

Neither informal agreements nor parenting plans are legally enforceable. If your ex-partner breaches this type of agreement, you must follow the usual process for resolving parenting disputes and comply with the pre-action procedures, unless you are exempt.

If you have parenting orders, you and your ex-partner must comply with every order that affects you. This includes taking all reasonable steps to comply with an order.

You will breach a parenting order if you:

• intentionally fail to comply with the order
• make no reasonable attempt to comply with the order
• intentionally prevent a person who is bound by an order from complying with it, or
• aid or abet a person who is bound by an order to breach it.

If your ex-partner has breached an order, you must follow the usual process for resolving parenting disputes and comply with the pre-action procedures, unless you are exempt. This includes attending mediation.

Mediation offers you and your ex-partner the opportunity to address any issues that may be causing the breach, or misunderstandings about how your orders operate.

If you can’t resolve your dispute, or you are exempt from mediation, you may be able to make a contravention application to the Federal Circuit and Family Court of Australia.

There are serious consequences for breaching a parenting order without a reasonable excuse.            

A court can order you or your ex-partner to:

• attend a post-separation parenting program
• give the other parent make-up time
• pay compensation to the other parent
• enter into a bond
• participate in community service
• pay a fine
• go to gaol
• pay the other parents’ legal costs.

For more information, see Children: Compliance and enforcement on the Federal Circuit and Family Court of Australia website.

Family counselling

There are a number of different counselling services available to families to help deal with the stress of separation, ongoing relationship issues and conflict between family members.

Family counselling is available to individuals, separated couples, parents and their children, and extended family members, for example grandparents.

The cost of family counselling varies depending on which service you use and your ability to pay. 

Family counselling is confidential. This means anything that is said, and any documents produced in counselling cannot be shared, except with the permission of the people who attended, or in limited circumstances to prevent a serious threat to someone’s life or a crime being committed.

For more information, see Counselling on the Family Relationships online website.

Parenting programs

Post separation parenting programs help parents to support their child through a family separation and manage their relationship with their former partner. They support parents to resolve parenting disputes peacefully and minimise conflict so that it doesn’t impact their child.

If you are involved in parenting proceedings, the Court may order you to attend a post separation parenting program.

To find your nearest program provider, see Find local help on the Family Relationships Online website.