No. If both parents agree on how custody should be split, then an informal agreement is often sufficient. Sometimes, however, informal agreements about the time that children are going to spend with each parent are limited in detail and provide no assistance in case of confusion or if something goes wrong. We recommend seeking advice from an experienced family lawyer about whether your parenting arrangements ought to be made into an agreement, and if so, what kind of agreement to use.

A parenting plan is a written record of the custody agreement between the parents, documenting the terms you have agreed. It can be changed at any time by agreement between the parents by way of a new parenting plan and is not legally enforceable but if parents who have a parenting plan ever go to Court, the Court usually looks at the parenting plan. Consent orders also set out the custody agreement between the parents but must be in a specific format and approved by the Court. Consent orders are legally binding on both parties, with consequences for non-compliance which is why many parents prefer to have their custody arrangements formalised through consent orders.

In addition to the basics of how the child's time will be split between the parents, you should consider things like where the child will go to school, religious instruction and/or attendance of services, how changeover will be handled and who will take the children to their different extra-curricular activities.

In some cases, parents may not agree, or one parent may have unreasonable expectations. In these situations, one or both parents can apply to the court to have the decision made for them. Going to court can be a long and costly process but having an experienced family lawyer on your side can help ensure the best possible outcome for your family.

If both parents can agree on the custody arrangements, mediation is not necessary. However, if you cannot agree on parenting matters such as the time the children are to spend with each parent, which schools they are to attend, or medical treatment, then the Federal Circuit and Family Court of Australia requires that you attend mediation before being able to apply to the Court for orders to be made. In cases where domestic or family violence is a factor or a person is unable to participate effectively, mediation may not be required.

Yes. Children do not have a right to determine where they live, who they spend time with, etc. Their parents are responsible for making that decision for them, although children may have certain views and wishes that might be given weight depending on a child’s maturity or level of understanding. Encouraging the child to spend time with their other parent is essential unless doing so is a risk to the child. Speak positively of their time with the other parent and avoid speaking poorly of the other parent where the child can hear. If there is a court order in place requiring the child to spend time with the other parent, contact your family lawyer as soon as possible after the child refuses to spend time with them.

The court may take a child's wishes into account when making orders regarding custody but this is only one factor among many and may not influence the court’s final decision. Factors such as the age of the child, their maturity and their level of understanding will influence how much weight the Court places on the child’s view.

There is no particular age where a child can make a binding decision about where they are going to live. In Australia, the decision about where a child will live is usually made by agreement between parents, but if the parents cannot agree and one of them applies to have the decision made by the Court, the decision will be made in that way. When the Court makes a decision about where a child will live, they have to consider the child’s best interests as the top priority. If a child has expressed views about where they would like to live, that is a relevant factor for the Court to consider in making a decision. This may be an important factor in some cases, but it is only one factor amongst many others.