Compared with many other countries, Australia has a relatively high divorce rate, driven by a range of macro-level factors including multicultural integration, differing immigration backgrounds, and the retention of traditional values. By early April 2023, 51,076 couples had divorced; in 2019, 2020, and 2021, the number of divorces was 48,582, 49,510, and 56,244 respectively, showing a year-on-year upward trend (data from the Australian Bureau of Statistics and IBIS World reports). When divorcing in Australia, one of the matters that spouses must consider carefully is the question of child custody. The following discussion will focus on child custody in the context of divorce, walking step by step through what a child custody agreement is, what it should contain, how to put one together, and how the courts approach these matters.

What an Australian child custody agreement covers

A custody agreement is a written document signed by the parents or other relevant relatives, and should cover the following matters:

• Who the child communicates with and spends time with
• Who the child lives with
• Education and parenting
• The child’s medical matters
• Religious or cultural practices
• Financial support for the child
• How parental responsibility is shared
• How disagreements are to be resolved
• How those with custody communicate with each other

How do you put a child custody agreement together?

A child custody agreement can be reached through direct negotiation between the parties, through proposals exchanged by their lawyers, or through family dispute resolution conferences attended with a mediator. Where appropriate, these alternative dispute resolution processes help our clients resolve outstanding issues without having to determine the custody arrangement through court litigation. Once the parties reach agreement, they can formalise it by entering into a parenting plan or consent orders.

Note that there is a difference between a parenting plan and consent orders, as set out below:

A parenting plan is a private agreement between parents that can be flexibly amended and adjusted as the child’s needs and circumstances change. It can be put together with the help of a lawyer, family counsellor, family dispute resolution practitioner, or family consultant, working with you and your former spouse. A parenting plan must be in writing, signed, and dated. The content of a parenting plan can be changed through a further written agreement. A parenting plan is not legally enforceable and does not create a legal obligation on either party. However, if you later become involved in court proceedings concerning child custody, the court will take the content of the parties’ agreement in the parenting plan into account.

If one party does not comply with the plan, the court cannot enforce it, but it can make new consent orders for custody based on the existing plan and arrangements. As you can see, a parenting plan privately signed between parents has no legal effect, even where the document is prepared by a lawyer — in simple terms, it is a gentlemen’s agreement between the child’s parents.

Consent orders are an agreement reached after negotiation with the other parent, usually with the assistance of a lawyer or a dispute resolution body, and are sometimes referred to as “parenting orders”. Consent orders / parenting orders are an enforceable agreement that has the same force as a court order. Consent orders are put before the court and approved by it, and because the court can enforce the agreement, they are legally binding. If one party fails to comply with consent orders, the other party can bring contravention proceedings in respect of that conduct.

On that basis, if you cannot reach a custody agreement with your partner, or you are forced to be separated from your children, you can apply to the court for parenting orders; commencing court proceedings can serve as a last resort. However, before lodging an application for parenting orders, you must attend mediation, unless mediation can be dispensed with for reasons such as urgency or family violence. Once mediation has been attended, a certificate is issued, which must be attached to the documents filed with the court. If there are circumstances that make mediation unsuitable, that will also be recorded on the certificate.

The court’s considerations in making consent parenting orders

Where a parenting plan cannot work, you can apply to the court for parenting orders. When the court makes parenting orders, it must ensure that the arrangements serve the “best interests of the child” in all respects, as this is the paramount consideration. The “best interests of the child” are reflected in both parents sharing equal and joint responsibility for the child’s long-term care, welfare, and development (such as medical, educational, and religious matters).

In setting custody arrangements, the court’s primary considerations are ensuring that the child maintains a meaningful relationship with both parents, and protecting the child from physical or psychological harm, abuse, neglect, and family violence. Taken as a whole, protecting the child from physical or psychological harm, abuse, neglect, and family violence carries greater weight.

In addition, the court will consider the following further factors:

• The child’s views, and the weight the court gives to those views;
• The child’s relationships with the parents and other people (such as grandparents or relatives);
• Whether the parents are able to participate in making significant and long-term decisions, and to spend time with and communicate with the child;
• Whether the parents are able to fulfil their obligations to care for the child;
• The parents’ attitudes towards the child and their parenting responsibilities;
• The likely effect on the child of any change in circumstances, such as being separated from a parent;
• The ability of the parents or other people to meet the child’s emotional and intellectual needs;
• Any difficulty and expense involved in the child seeing or communicating with a parent, and whether such difficulty or expense will affect the child’s right to maintain a relationship and direct contact with the parent;
• The maturity, sex, lifestyle, and background (including cultural and traditional background) of the parents and the child;
• Where the child is Aboriginal or a Torres Strait Islander, the child’s right to experience their traditional culture;
• Whether there is any family violence involving the child or other family members, and whether any family violence order applies;
• Whether it is necessary to make orders that avoid further proceedings concerning the child;
• Any other relevant facts or circumstances.

Taken together, the child should enjoy the same amount of time with both parents and keep in touch and communicate when they cannot meet in person. However, if such an arrangement is not in the best interests of the child or is not workable on an ongoing basis, the child should at least have “substantial and significant time” with each parent. In other words, the child usually lives with one parent and sees the other parent regularly, and needs to spend enough time together to ensure that the child maintains and develops a parent–child relationship with the other parent. Contact time can be arranged around important days or school holidays. As the child develops and grows, the specific arrangements will need to be continually adjusted and changed.

Final thoughts

As we can see, in Australia a child custody agreement can take the form of a parenting plan between the spouses that is not court-enforceable, or of consent orders that the court can enforce. Whether it is a parenting plan or consent orders, the main content is built around the best interests of the child, with the aim of ensuring that the child can grow up healthily in an optimal environment. Even though the parents have separated, arrangements for the care of the child should not be dealt with lightly — a custody agreement that both sides have agreed on is particularly important.