Separations are challenging, especially when you share children. While you created them together, it’s difficult to decide where they will live and how much time each parent will receive when you’re trying to navigate the fallout of a breakup. However, the children are the most important consideration, and the family court will always act in the best interests of the children. 

At AJB Stevens, we understand how terrifying everything looks and feels right now, but here, we’ll explain what parenting orders are, how they work after separation, what parents’ rights look like, and how we can help you navigate a complex legal process. 

Separation in Australia 

You can separate from your partner while still living in the same home as long as it’s not as a couple. You must be separated for a period of twelve months before you can file for a divorce. Separation isn’t the same as divorce, so there’s no need to worry about the property pool or property settlement time limit. You can make a parenting arrangement at any point during the Property Settlement Process, whether the divorce has started or not. 

We must stress that separating from your de facto partner or spouse doesn’t mean forfeiting your legal responsibility for your children. Both parents can share parental responsibility over their children, co-parenting together to provide a happy, healthy upbringing. However, the court can sever a parent’s legal responsibility in extreme cases. The separation process provides ample time to agree to a property settlement after separation.

Parenting Plans Versus Parenting Orders

The key difference between parenting plans and parenting orders is the formality.

Parenting Plans 

  • A parenting plan is a voluntary written agreement between the parents. 
  • A parenting plan isn’t a legally enforceable agreement, but it’s a useful document if both parties cooperate. 
  • Parenting plans are flexible and can be changed as long as both parties agree. 
  • A parenting plan is commonly reached in a mediation session or via family dispute resolution.

Parenting Orders

  • A parenting order is a legally binding decision made by the Family Court of Australia and the Federal Circuit. 
  • A parenting order can be issued in the form of a Consent Order if the Court must intervene due to parental disagreements.
  • As it is a legally binding order, breaching a parenting order comes with severe legal consequences.

The Court prefers that parents reach a parenting agreement without the need for litigation. In most cases, Family Dispute Resolution is a mandatory part of the process before you can apply to the court. 

What Parenting Orders Cover

Parenting orders cover a wide range of areas, including who the child will live with the majority of the time and when they will see the other parent. The parenting order will outline precisely how much time the child will spend with each parent and how the parents will communicate together about the child’s needs and interests. It will also highlight who handles major long-term decisions about health, education, and religion; holiday arrangements; birthday arrangements; and travel arrangements. It should also detail how the children will maintain communication with their other parent, whether it be via video chats, phone calls, or texts. The purpose of these orders is to ensure every child has the opportunity to maintain a meaningful relationship with both of their parents when it’s safe and appropriate to do so. 

The Key Legal Principle: The Best Interests of A Child 

The best interests test is outlined in Section 60CC of the Family Law Act 1975, with the Court’s primary goal to always act in a child’s best interests rather than a parent’s preferences. The main factors the Court will consider include: 

  • The importance of protecting children from psychological or physical harm. 
  • The benefits to the child from having a meaningful relationship with both of their parents.
  • The practicality of the arrangements, whether there are commutes, work schedules, schooling, and extracurriculars to factor in. 
  • Each parent’s capacity to adequately meet the children’s needs. 
  • If the children are old enough or deemed mature enough, the Court will hear the views of the child as to where they would prefer to live.

Family Law reforms in 2023 and 2024 simplified the test to put more emphasis on children’s safety, stability, and well-being. 

The Parenting Order Application Process

Step 1. Family Dispute Resolution 

You cannot apply to the court before you have attended mediation sessions with your former partner.

Step 2. File An Application (With the FCFCOA)

Ensure you include the Section 60I certificate to show proof* that you attempted meditation.

*There are exceptional (or urgent) cases where you will bypass the mediation stage and go directly to court, including child abuse and family violence. 

Step 3. If Urgent, Attend an Interim Hearing

If there are safety concerns, the Court can make temporary orders to keep everyone safe.

Step 4. The Final Hearing

The Court will review the evidence and expert reports before making a final decision. 

Step 5. Enforcement

A parenting order is legally binding, so if the other parent doesn’t comply, it could result in penalties. 

Parenting Ordering: How to Modify or How to Handle a Breach

Parenting orders are set in legal stone unless one party experiences a significant life change, such as a new job, relocation, or a change in the children’s needs. If there is a parenting order breach, the other parent can turn to the Court to apply for enforcement. 

How AJB Stevens Can Help 

AJB Stevens has vast experience in handling separation, divorce property settlement, parenting plans, and offers compassionate family and parenting law advice. Not only can we help you reach an amicable agreement with your former partner, but we can also draft and file consent orders, represent you in mediation, represent you in Court proceedings, and protect your rights and your children’s well-being. 

If you’re going through a separation or you need parenting order assistance, AJB can provide the practical support you deserve with the legal advice you need. Reach out today to schedule your free consultation.