Most separating parents are able to decide between themselves where the children will live and other parenting issues without taking the matter to court. While this can be a difficult and emotionally draining experience, solutions reached in this way usually suit everybody better than a decision imposed by the court. Court battles over children are often very bitter, drawn out and expensive. Parents are also often better able than a court to work out what arrangements suit their children.

A family law court decision that appears to leave one side the winner and the other the loser also increases the bitterness between the parties. This can be avoided if the parents are able to agree, without the intervention of the court, about the most satisfactory living and other arrangements for the children.

Mediation and counselling services can be used to assist parents to reach agreement. The Commonwealth government has funded a nationwide system of Family Relationship Centres to assist separating parents to make agreements regarding their children without going to court, see CHILDREN.

What happens if we agree about the children?

Where an agreement has been reached there is no need for a family law court to ratify the decision and no formal orders are required. Agreements can be verbal, but parents are encouraged to prepare parenting plans to help avoid disputes. Parenting plans are written agreements between parents regarding arrangements for a child and assistance with these can be provided by a Family Relationship Centre.

Are parenting plans legally binding?

Without being filed in a family law court as consent orders, parenting plans have no legal force. After reaching an agreement some people prefer to apply to the court for a binding order. This can be done by preparing a consent order. The Family Court has a Consent Order Kit but you should get independent legal advice first.

We had a parenting plan but can no longer agree — can we still apply to the court for orders?

Yes, you can still make an application to a family law court for parenting orders. However, the first stage of the process for all applicants will involve attending mediation. After the 1st July 2007 all applicants for parenting orders will need to provide with their application a certificate issued by a family dispute resolution practitioner stating that they have attended or tried to attend family dispute resolution, or, in the opinion of the practitioner, do not need to go.

I want to change an order — what do I need to do?

If both parents agree on how it should be changed, an application can be made for consent orders, unless the original orders say that any variation must involve the court.

Where only one parent seeks a variation an application must be made to the court with evidence to justify the variation.