Child Custody and Parenting Arrangements

At Frigo James Legal Group we focus on alternative dispute resolution processes such as family law mediation. By adopting this approach, we can help parties avoid the delays, costs and emotional stress associated with litigating their matter in Court.  The types of parenting disputes can be resolved in this way include:

• Child custody matters such as who the children should live with or who the children will spend time with
• How the children will communicate with the parent they are not spending time with
• Who will have parental responsibility for long and/or short term decisions
• Whether one parent should pay child support, and if so, how much child support a parent should pay
• Who the children will spend time with at Christmas, birthdays, school holidays and on other special days
• Whether a parent can take the children overseas
• Whether a parent should be able to relocate with children

The Family Law Act 1975 specifically requires that any parenting arrangements that are put in place ensure that the best interests of the children are met by:

• ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
• children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
• children receive adequate and proper parenting to help them achieve their full potential; and
• parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The Family Law Act 1975 provides further guidance on how parenting arrangements should be determined by explaining that, except when it is or would be contrary to a child’s best interests:

• children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
• children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
• parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
• parents should agree about the future parenting of their children; and

• children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Of course, no two parenting cases are identical, and what may be in the best interests of one child may not be in the best interest of another, even if that other child is a sibling. Our family law solicitors can assist you with tailoring a parenting arrangement for your child that would be in their best interests and which, in compliance with the Family Law Act 1975 , takes into consideration matters such as:

• any views expressed by the child and any factors (such as the child’s maturity or level of understanding)
• the nature of the relationship of the child with:

• each of the child’s parents; and
• other persons such as grandparents or other relatives of the child;
• child’s parents has taken, or failed to take, the opportunity:

• to participate in making decisions about major long-term issues in relation to the child; and
• to spend time with the child; and
• to communicate with the child;
• child’s parents has fulfilled, or failed to fulfill, the parent’s obligations to maintain the child;
• child’s circumstances, including the likely effect on the child of any separation from:

• either of his or her parents; or
• any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living;
• child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• child’s parents to provide for the needs of the child, including emotional and intellectual needs;
• child and of either of the child’s parents, and any other characteristics of the child that the court may think are relevant;
• child is an Aboriginal child or a Torres Strait Islander child:

• the child’s right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
• the likely impact any proposed arrangement will have on that right;
• child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
• family violence involving the child or a member of the child’s family;
• family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:

• the nature of the order;
• the circumstances in which the order was made;
• any evidence admitted in proceedings for the order;
• any findings made by the court in, or in proceedings for, the order;
• any other relevant matter;
• whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
• any other fact or circumstance that a court may consider to be relevant.

Where an agreement can be reached, we can help you formalise it by recording it in a Parenting Plan, a Consent Order, or a Child Support Agreement.

Parenting Plans are written agreements that are dated and signed by the parents, and which record the details of what has been agreed between them. As a Parenting Plan is not a court order, it cannot be enforced under the Family Law Act 1975.  Nor is there a penalty imposed by a court when one parent fails to comply with the terms of the agreement set out in the Parenting Plan.

Consequently, we would normally advise our clients that where they have been able to reach an agreement in relation to the future parenting arrangements of their children, that agreement be incorporated into a Consent Order which can be filed in the Federal Circuit Court of Australia. A court will not make an order in relation to the parenting of a child unless it is satisfied that it is in the best interests of that child. At Frigo James Legal Group our family law solicitors can help prepare the Consent Order and the necessary Application and supporting evidence that must be filed in the Court to satisfy the Court that the proposed Consent Order is in the child’s best interests.

Where the Court is satisfied that the Consent Order is in the child’s best interests, it will make the order without the need for either of the parents or their lawyers having to attend the court.

Before a party can apply to the Court for a parenting order, they are usually required to have made a genuine attempt to try and reach an agreement in relation to their parenting dispute. This requires the parties to attend a family dispute resolution conference with a registered family dispute resolution practitioner. Where the parties are unable to reach an agreement, the family dispute resolution practitioner will issue them with a certificate, commonly referred to as a ‘Section 60I Certificate’. This certificate will confirm that the parties tried, but were unable, to reach agreement on the parenting dispute, and must be filed with the court in any subsequent application for parenting orders.



There are certain circumstances where the parties do not have to attend a family dispute resolution conference, including where a court would be satisfied that there would be risk of abuse of a child if there was a delay applying for a parenting order, or a risk of family violence by one of the parties to the proceedings. If you have any concerns in relation to either of those matters, contact one of our family lawyers so that we can discuss your matter.

Applications for parenting orders are usually made to the Federal Circuit Court of Australia. Where a matter involves allegations of serious child abuse or family violence, international child abduction, or otherwise involve special medical procedures, then consideration may need to be given to the application for parenting orders being filed in the Family Court of Australia.



An application for parenting orders can seek both interim and final parenting orders. Interim parenting orders can help provide children with stability and avoid ongoing conflict between the parties until final parenting orders are made. The time between when an application for parenting orders is first filed in the Court and the first occasion when the matter can be considered by a judge can differ depending on the location of the Court in which the application is filed. However, it is not unusual for that time to be three to four months.

When an application comes before the Court for the first time, the Court will make orders to help progress the matter to a final hearing. Those orders will usually include interim parenting orders, and may require the parties to do things that will help the Court gather the evidence needed to ensure that the final parenting orders are in the child’s best interests. This can include requiring the parties to attend upon an expert so that they can be interviewed about their relationship with the other party and the children, and also observed interacting with the children. That expert will then prepare a report, usually referred to as a ‘Family Report’ which can be provided to the Court to assist it in making a decision.



Parties to an application for parenting orders will also be required to prepare and file in the court affidavits setting out the evidence they want to rely upon in support of the orders they want the Court to make. The process of preparing and gathering evidence for a Court to be able to make a decision as to what is in a child’s best interests can take quite some time. Consequently, depending on the complexity of a matter, an application for parenting orders may not be listed for a final hearing for a number of months.

At a final hearing, the parties are required to be present and make themselves, as well as any of their witnesses, available for cross-examination by the other party or their lawyers. After the Court has heard all of the evidence, it will make a decision as to what parenting arrangements should be put in place to ensure the child’s best interests are met, and make final orders to give effect to those arrangements.

The orders made by the Court are enforceable and should a party fail to comply with them, without reasonable excuse, they expose themselves to serious and significant penalties, including, in some circumstances, imprisonment.

If you are considering applying, or have applied, for a protection order, then obtaining early legal advice may help ensure that you are successful in that application. At Frigo James Legal Group our experienced domestic violence lawyers are able to advise you in relation to all aspects of applications for protection orders. Contact today our experienced family law lawyers on 07 5621 3799 or email us at info@fjlegal.com.au for experienced legal advice in relation to your matter.