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Making your written agreement

What should we consider when preparing our written agreement?

The Family Law Act encourages parents to talk about and agree on arrangements that are in their child/ren’s best interests. On pages 28 to 43 of this guide you will find the parts of the Family Law Act that explain what this means. It includes things like ensuring your child/ren’s safety and letting them have meaningful relationships with both parents and other relatives such as grandparents, if they are protected from harm.

Read these parts so you have a good understanding of the principles underlying any agreement you make. If you apply for consent orders, you will have to sign a statement of truth saying you have read and considered the sections of the Family Law Act (sections 60B, 60CA, 60CC, 60CH, 60CI, 61DA, 64B, 65DAA, 67Z and 67ZBA) that are listed later in this guide.

Words to use

The court must presume it is in the child’s best interests for the child’s parents to have equal shared parental responsibility, except where there is abuse or family violence, or the court thinks it would not be best for a child.

‘Equal shared parental responsibility’ means parents both share the responsibility of making major long term decisions about their children. These are decisions such as: a child’s schooling, education, religion, culture and other matters that significantly impact a child. The parents have an obligation to consult each other about such decisions and to make an effort to come to an agreement. If the parents have tried but have not been able to reach an agreement, even after family dispute resolution, then the decision may need to be made in court. Judges prefer for parents to make these decisions about their children.

In some circumstances where it is seen as not best for a child for both parents to be involved in long-term decisions, such as situations of abuse or family violence, the court can make an order for one parent to have sole parental responsibility. This parent can then make all major long-term decisions about their children on their own, without the need to consult or get approval from the other parent.

This is different to children spending an equal amount of time with each parent. If the court presumes the parents should have equal shared parental responsibility, it must consider if spending equal time with each parent would be in the children’s best interests and is reasonably practical. To decide if an arrangement is reasonably practicable a court would consider things such as: how far apart the parents live, the impact on the child and if the parents can communicate to resolve difficulties. If the court feels it is in a child’s best interest and is reasonably practicable, then the judge must look at making an order for the children to spend ‘equal time’ with each parent.

When equal time is not appropriate, the court then must consider if an order for substantial and significant time is practical and in the children’s best interests. ‘Substantial and significant time’ means a child spends time with a parent on some weekends, holidays, weekdays and special days. If substantial and significant time is also not best then any other time arrangement can be considered, including supervised time if required. Even if you both agree on the arrangements, the court will still look at your agreement from the point of view of ‘the best interests of the child/ren’ and will not accept it if it does not reflect this.

When you read the sections of the Family Law Act on pages 28 to 43 of this guide, you will notice it doesn’t talk about ‘custody’ and ‘access’ or ‘residence’ and ‘contact’. These are terms previously used in family law. Instead, it now talks about ‘making arrangements’ for children, including where the children will live (‘lives with’) and how often the children will see and talk (‘spends time and communicates with’) to the other parent (and grandparents and other extended family).

You may already have court orders that say the children ‘live’ or ‘reside with’ one parent and ‘have contact’ with the other parent. Any new orders will talk about how a child ‘lives with’ one parent and ‘spends time’ and ‘communicates’ with the other parent.

Use this more updated language in your agreement.

What should go into our written agreement?

You should consider and include these things in your agreement:

  • Where will the child/ren live?
  • Will there be a shared care arrangement where the child/ren live with each parent for part of the week or fortnight?
  • Are there any religious, cultural, educational or other considerations you want to include in your agreement?

Try to think of things that may happen in the future and what arrangements you can make to help with those events. Ask “what if…” questions, for example:

  • What if the children are sick?
  • What if there is a pupil free day following the weekend the children are spending time with the other parent?
  • What if the children want to attend swimming lessons, football, or dancing — Who will pay for it and who will take the children?
  • Are there religious ceremonies they should attend? Who will take them?
  • What if I want to take them on an overseas holiday?

The agreement you and the other parent reach must be one that is reasonable and practical for your circumstances.

When you are trying to decide what are reasonable and practical arrangements for your child/ren, put yourself in their place and ask how they might cope with the arrangements you propose. Think about the following things:

  • How far will they have to travel to school from each parent’s house?
  • Will they be able to maintain their friendship groups and activities if they are living in two different households?
  • Are they old enough to remember to move the things they might need, such as sports equipment, between the two households as needed?

Also, think about how you and the other parent will manage things like:

  • before and after school care
  • school holidays
  • transport
  • your employment or study obligations
  • the financial costs of shared care.

Ask yourself “Is this agreement workable?” and “Is it in the child/ren’s best interests?”.

Consider the arrangements that appear ‘equal’ or ‘fair’ on paper may not be the best arrangements if they are too difficult for the children or for one or both parents.

It is important your agreement is written in a way that is short and clear to not only you and the other parent, but to any other party who may need to refer to it (eg school, day care centres, Child Support Agency, Centrelink).

For more information, see the consent order examples.

Last updated 23 June 2021

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