Child custody and parenting arrangements
The aim of family law
The law’s main concern is to ensure that a child’s best interests are met by being protected from physical or psychological harm (the highest priority) and having both parents involved meaningfully in their lives. A court considers many factors when deciding what types of arrangements are in a child’s best interests.
The law encourages parents and other people interested in a child’s welfare to agree on arrangements, including where they’ll live, how they’ll be financially supported and what their relationship with family members will be.
Making an agreement
If both you and the other parent agree on an arrangement for the child, you have 3 methods for determining the arrangements:
- a verbal agreement between you with nothing in writing
- a written agreement, known as a parenting plan, which is not enforceable by law
- a consent order, which is an agreement in writing, signed, witnessed and filed with the court.
While working out these arrangements, a family dispute resolution service, such as Legal Aid Queensland or a Family Relationship Centre, may be able to help you.
If there is family violence, you may not be able to negotiate with the other parent. If so, Legal Aid Queensland or a Family Relationship Centre can find a specialist family violence service to help you.
A parenting plan is a written, signed and dated agreement that sets out the care arrangements for the child. Parenting plans are not legally enforceable but a court will consider your latest parenting plan if you apply for orders later.
A parenting plan does not need to be on any special form or be witnessed. You don’t have to go to court to formalise the parenting plan. However, you can have a court turn your parenting plan into a consent order if you wish (see below).
Parenting orders, including consent orders
If you can’t reach an agreement, you’ll need to apply to the Family Court or Federal Magistrates Court (to be known as the Federal Circuit Court in the new year) for parenting orders.
The court can make parenting orders by consent (i.e. a consent order) or after a trial or hearing (i.e. a court order). If the situation is urgent, you can apply for interim parenting orders.
A parenting order states the responsibilities of parents and other carers. It may cover:
- where the children live
- who the children spend time and communicate with
- any other issues, such as schooling or medical treatment.
If two or more people share parental responsibility for long-term decisions, a parenting order can include how the parents will communicate with each other about decisions for the child.
Applying for a parenting order
You can apply for a parenting order if you’re the child's parent, grandparent or any other person concerned with their welfare. Both parents must be part of the agreement or order.
If every person involved does not agree to the application, the court may ask for a report from a family consultant or social worker to discuss how the order would work in practice. This helps the court decide which orders are in the child’s best interests.
What the court considers
The court’s main concern is the child’s best interests, including
- protection from physical or psychological harm (given the highest priority)
- the benefit of having both parents’ meaningful involvement in their life
- whether the parents should have ‘equal shared parental responsibility’ for long-term decisions about a child (unless child abuse, family violence or other issues are a factor)
- each parent’s attitude to their parenting responsibilities, such as paying child support or turning up for their time with the child.
There is no set age when children can decide where they live or who they spend time and communicate with. The law considers a child’s emotional and intellectual maturity and age when considering their wishes.
Breaches of parenting orders
Breaching a court order is very serious. If you breach a parenting order without a reasonable excuse, the court can order you to participate in a parenting program run by an approved counselling service.
The court may also change the existing order or impose more severe penalties, including one year’s jail, a $6600 fine or community work.
Applying for a consent order
A consent order must be on a special form, which you can download from the Family Law Courts website. It must be signed, dated and witnessed, filed in the court and approved by the court to have legal effect.
Although you don’t need a lawyer to complete the consent order document, you should get legal advice before filing this document in court.