Parenting Arrangements After Separation in Australia
If you are separated and your ex is stopping you from seeing your children, it can be distressing and difficult to know what you can do next.
In Australia, one parent does not automatically have the right to determine whether the other parent can spend time with their children. Equally, there is no automatic entitlement to equal time or any particular parenting arrangement.
Australian family law focuses on what is in the best interests of the child.
Whether one parent can restrict or prevent a child spending time with the other parent depends on the circumstances. Important considerations can include whether parenting orders are already in place, the arrangements that have previously operated and whether there are concerns about family violence, abuse, neglect or another risk to the child.
Understanding the difference between informal parenting arrangements, parenting plans and court orders is an important starting point.
Can My Ex Stop Me Seeing My Children?
The answer depends significantly on the circumstances and whether there are existing parenting orders.
If parents have been following an informal arrangement and there are no court orders, one parent may stop following that arrangement.
That does not necessarily mean that parent can unilaterally determine the long-term parenting arrangements for the child.
If the parents cannot reach agreement, they may need to participate in Family Dispute Resolution or seek parenting orders from the Federal Circuit and Family Court of Australia.
The Court provides information about what happens when parents cannot agree about parenting arrangements.
Where parenting orders already exist, the position is different because people affected by those orders are required to comply with them.
What Does the Court Consider to Be in a Child’s Best Interests?
Under the Family Law Act 1975, a child’s best interests are the paramount consideration when the Court decides whether to make a particular parenting order.
The Court must consider a number of matters when determining what is in a child’s best interests.
These include:
- what arrangements would promote the safety of the child and each person who cares for the child;
- any views expressed by the child;
- the child’s developmental, psychological, emotional and cultural needs;
- the capacity of each person who has or is proposed to have parental responsibility to meet those needs;
- the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
- anything else relevant to the child’s particular circumstances.
The current considerations are contained in section 60CC of the Family Law Act 1975.
This means parenting disputes are not decided simply by asking which parent has a greater “right” to the child. The focus is on the individual child and the arrangements that are in that child’s best interests.
What If There Are Already Parenting Orders?
Parenting orders are legally enforceable orders dealing with arrangements for a child.
They may address matters such as:
- who the child lives with;
- how much time the child spends with each parent or another person;
- how the child communicates with a parent;
- responsibility for making decisions about major long-term issues; and
- other aspects of the child’s care, welfare and development.
When parenting orders have been made, each person affected by them must comply with the orders and take reasonable steps to ensure that they are followed.
The Federal Circuit and Family Court provides detailed information about parenting orders and the obligations they create.
If an order provides for your child to spend time with you and the other parent prevents that time from occurring, there may be an issue concerning compliance with the parenting order.
What Happens If a Parenting Order Is Breached?
Failing to comply with a parenting order can have legal consequences.
A person who is bound by an order may contravene it if they intentionally fail to comply with the order or make no reasonable attempt to comply with it.
A person may also contravene an order by intentionally preventing another person who is bound by the order from complying with it.
However, the circumstances surrounding the alleged contravention are important.
If the Court determines that an order has been contravened, it will consider whether the person had a reasonable excuse.
Depending on the circumstances, the Court has a range of powers when dealing with parenting-order contraventions. These can include orders for make-up time, varying or suspending parenting orders, requiring participation in a post-separation parenting program and, in some cases, other penalties.
The Court explains these issues in its guidance on compliance and enforcement of parenting orders.
What If There Are Safety or Family Violence Concerns?
Safety is an important consideration in parenting matters.
The Family Law Act 1975 specifically requires the Court to consider arrangements that promote the safety of the child and each person who has care of the child, including safety from family violence, abuse, neglect or other harm.
This means a dispute about a child spending time with a parent can be very different where genuine safety concerns exist.
There may also be circumstances in which a person who has not complied with an existing parenting order argues that they had a reasonable excuse.
For example, the Court may consider whether a person reasonably believed that the actions were necessary to protect the health or safety of a person or child and whether the contravention continued no longer than necessary for that protection.
Whether a reasonable excuse exists depends on the particular circumstances.
A parent should therefore be cautious about assuming either that an existing parenting order can simply be ignored because concerns have arisen, or that safety concerns cannot be raised because an order already exists.
Where allegations of family violence, abuse or another serious risk are involved, obtaining legal advice promptly may be important.
What If We Only Have an Informal Parenting Arrangement?
Many separated parents initially make arrangements between themselves without obtaining formal parenting orders.
Those arrangements might cover where the children live, weekends, school holidays, birthdays and communication with each parent.
Informal arrangements can work well while both parents continue to agree.
Difficulties can arise when one parent changes their position or stops making the child available.
An informal agreement generally does not provide the same enforceability as a parenting order.
Parents who reach agreement may consider recording their arrangements in a parenting plan or applying for consent orders.
A parenting plan and a parenting order are different. A parenting plan is a written agreement about parenting arrangements but is not itself legally enforceable in the same way as a court order.
Do I Have to Try Family Dispute Resolution?
In most parenting matters, parents are required to make a genuine effort to resolve their dispute through Family Dispute Resolution (FDR) before applying to the Court for parenting orders.
FDR allows separating parents to attempt to resolve disagreements with the assistance of an independent Family Dispute Resolution Practitioner.
If agreement is reached, parents may enter into a parenting plan or consider applying for consent orders.
There are exceptions to the requirement to participate in FDR, including in certain circumstances involving urgency, family violence or child abuse.
The Federal Circuit and Family Court explains the Family Dispute Resolution requirements before commencing parenting proceedings.
What Can I Do If My Ex Won’t Let Me See My Child?
The appropriate next step depends on whether parenting orders already exist and why the existing arrangements have stopped.
Depending on the circumstances, options may include:
- attempting to communicate with the other parent about the problem;
- obtaining legal advice about the existing arrangements;
- participating in Family Dispute Resolution;
- negotiating a parenting plan;
- applying for consent orders where agreement can be reached;
- applying to the Court for parenting orders;
- seeking a variation of existing parenting orders; or
- considering enforcement or contravention proceedings where an existing order is not being followed.
Where a child has been taken or is being withheld in circumstances requiring their return, different procedures may apply. The Court provides information about recovery orders for children.
The appropriate course will depend on the particular facts, so it is important not to assume that one solution applies to every parenting dispute.
Can Parenting Orders Be Changed?
Parenting arrangements sometimes need to change as children grow and family circumstances develop.
Parents may agree to change arrangements themselves, but care should be taken where existing court orders are in place.
If both parents agree, they may be able to formalise new arrangements.
Where agreement cannot be reached, it may be necessary to seek legal advice about whether an application to change existing parenting orders is appropriate.
The Court will continue to focus on the best interests of the child when considering proposed parenting arrangements.
What About Moving Away With a Child?
Parenting disputes can become more complicated where one parent proposes moving with a child to another suburb, interstate or overseas and the move would affect the child’s relationship or time with the other parent.
Relocation cases are determined according to the circumstances of the particular family and the child’s best interests.
If relocation is part of the dispute, read Can I Move Away With My Child After Separation? for further information about relocation and parenting arrangements.
When Can a Family Law Barrister Become Involved?
Parenting disputes can range from relatively straightforward disagreements to complex proceedings involving allegations of family violence, significant factual disputes, expert evidence or difficult questions concerning a child’s future arrangements.
A family law barrister may be briefed by a solicitor to provide advice or representation in more complex parenting matters.
Depending on the circumstances, counsel may assist with:
- advice on prospects;
- interim parenting disputes;
- relocation matters;
- complex parenting proceedings;
- allegations involving risk or family violence;
- preparation and settlement of court documents;
- conferences;
- final hearings; and
- appeals.
Chris Garlick accepts briefs from solicitors in parenting and other family law proceedings.
For more information about Chris’s work in parenting matters, see Parenting Matters.
Getting Advice About Parenting Arrangements
If your ex is stopping you from seeing your children after separation, the legal position will depend on your family’s circumstances.
The existence of parenting orders, the reasons contact has stopped, the child’s circumstances and any concerns about safety can all be relevant.
Australian family law does not approach the issue simply as a contest between the rights of two parents. The central consideration when the Court makes parenting orders is the best interests of the child.
Understanding the legal position early can help identify the appropriate next step, whether that involves negotiation, Family Dispute Resolution, formal parenting arrangements or court proceedings.
Chris Garlick, Barrister, provides advice and advocacy in Australian family law matters and accepts briefs from solicitors in complex parenting disputes and proceedings.