Parenting Agreements Fact Sheet

Separation can be a difficult time for families, particularly where there are children involved. The law in Australia is that parenting agreements after separation must be those that are in the child’s best interests.

But in our experience, parents usually have quite different ideas about what is in a “child’s best interests”.

Disputes often arise between parents about things like who the child will live with, how much time they will spend with the other parent, or what school the child will go to. And both parents will usually put forward their position as being founded on the child’s best interests.

So whose opinion prevails?

As a starting point, parents share equal joint parental responsibility (unless there is a Court order altering the allocation of responsibility). This means parents are required by law to share the decision making responsibilities for the big decisions about raising their child, things like:

  • who the child will live with
  • how much time they will spend with the other parent
  • which school the child will attend
  • what religion the child will follow
  • if and when the child will undergo major health related treatments
  • whether to change the child’s name

Joint parental responsibility means that both parents must share information with each other and make a genuine effort to consult with each other and come to an agreement about such matters.

The only exception to the requirement for co-operative decision making is in situations where there are reasonable grounds to believe that a parent has engaged in domestic violence or child abuse.

What If We Can’t Agree?

If you have been to mediation and cannot agree on arrangements for the children, then you will need to make an application to the Court so that a Judge can decide what the arrangements will be.

Unless there are good reasons why parents should not share joint parental responsibility, the law says that a Court must consider making Orders for the child to spend equal time with both parents. If equal time is not in the child’s best interests, then the Court must consider making an Order that the child spend significant and substantial time with the other parent.
But any Order the Court makes must be in the child’s best interests.

In deciding if an arrangement is “in the child’s best interests” the Court will consider a range of factors, primarily being the benefit to the child of having a meaningful relationship with both of their parents and the need to protect the child from physical or psychological harm.

Tips for Parenting Agreements

  • If there is a risk or a history of domestic violence or child abuse you should let your lawyer know immediately.
  • Do not attempt to change your child’s education, childcare or living arrangements unless there is a risk to the health or safety of your child. We recommend you get legal advice about this first, if possible, as this may influence any court decision in the future.
  • Keep a diary.
  • Obtain legal advice from a lawyer who practices in Family Law.

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