Parenting Orders/Plans and Court

Below are a few items for consideration when collating your parenting plan – be it the Divorce Answered Parenting Plan, the Divorce Answered Separation Statement, something you are creating yourself or personal expectations that you need to manage.

No plan, no divorce! Did you know that if you don’t have a parenting plan in place, then your divorce application may be refused? Yes, it has happened.

The courts don’t tend to favour 5050 custody anymore. In 2006, the Howard Government introduced legislation that was pro-5050 care, giving greater access to Fathers. While this worked in some cases, in many cases it was causing more concerns and anxiety for the children. Meanwhile, in the media there was an increase in reported stories about harm to children because of increased access to violent parents. Today, the courts have realised that 5050 care was more in the interest of the parents than the children. Children need stability. What does seem to be readily agreed to is alternate weekends and half of the holidays for the Spends Time With Parent, however, this comes with conditions too.

“Half of the holidays” access comes with conditions and needs to be in the best interest of the children and the quality of time offered. For instance, offering half of the holidays to the Spends Time With Parent who has to work and put the children in vacation care is not considered “quality time”. If both parents work and the children are enrolled in vacation care regardless of whom they spend time with, then it is an acceptable offer/situation. Spending unnecessary time in vacation care is not in the interest of the children.

Acceptable behaviours. The scope of what are acceptable behaviours in the opinion of the family court is vast. What may be unacceptable to you or I, can be (surprisingly) considered acceptable behaviour by the court. Today, however, the courts are more interested in shared custody arrangements in non-violent families and is very sensitive to the needs of the children in families involving abuse and violence. The ability for the parents to be emotionally available for and understanding of their children is also becoming increasingly a priority in the family courts.

Overnight stays. Some judges are more in favour of overnight stays for under 4 year olds and others are not. There have been studies published and social science petitions for and against overnight stays for young children and other professionals that have published articles for overnight stays for young children. I believe that it is individualised and every case is different. As parents, we need to use our judgement for what is in the best interest of the children and what the children need and can manage. Yes, some children are more fractious and irritable at not being at home with their Live-With-Parent. This can be the sentiment of children of all ages (young to teens) and for a variety of reasons and needs to be taken into consideration.

Children have different needs at different stages of their development. These do need to be considered and the shared parenting agreements tailored to what the children want and need. Teenage children aren’t overly interested in spending time with either parent. More often than not, they would prefer to be with their own friends. Parents need to understand where their children are at and accommodate for it.

Extra orders. If you have specific concerns, you can add extra parenting orders. For example, not exposing the children to violence, weapons and drug scenes, or parents refraining from ingesting drugs or alcohol 24 hours before and during access/visitations with the children. Discuss your concerns with your lawyer and discuss how you can suitably add it to your parenting orders.

Be consistent! No matter what happens, if you have been rational, fair and child minded when proposing your parenting orders, then stand firm. Don’t be easily swayed, especially if you know what you are proposing is in the best interests of the children. By all means, if the other parent is also being fair and reasonable, make an agreement and settle out of court. However, you may find that a self-serving parent will make many and different submissions for parenting orders and in this case, you will be looked upon favourably by the courts.

If you find this a little overwhelming, then consider using the Divorce Answered Parenting Plan for a guided, comprehensive and efficient way to create your individualised parenting plan. Once you are happy with your finished product, you can get your lawyer to check it and lodge it as orders. So, whether you and your ex-partner are happy with the plan or wish to have orders, you are able to create the plan as well as having complete control over the process and expense of creating the document.


This is general advice only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer and/or accountant before making a decision about what to do or applying to the Court. cannot provide legal advice. If you have an emergency situation, please contact Emergency '000'. © Divorce Pty Ltd