A simple guide to parenting arrangements, consent & exceptions

Do I need my former partner’s permission to cut our child’s hair? We’ve written this simple legal guide to parenting arrangements that answers what you need consent for, plus explore some examples of exceptions to these parenting agreements.

By Michael Sheahan.

When raising a child, parents can often disagree on vital parenting decisions. What school should your child go to? How much screen time should they have? What extra-curricular activities should they be involved in? 

When a child’s parents are no longer in a relationship, and yet share the responsibility of making these decisions together, reaching a consensus can be difficult. Parents are uncertain of what decisions they require their co-parent’s consent for relating to their children.

A parenting agreement is a document drafted by parents that sets out the care arrangements for co-parenting a child. For parenting plans and what they should address, see our previous article here.

What do you need consent for in a parenting arrangement?

Firstly, unless you have a parenting order which states otherwise, both parents have parental responsibility for their children. When the Court is asked to make a parenting order, it is presumed that both parents will have equal shared parental responsibility unless there are reasonable grounds to believe that one parent has abused the children or engaged in family violence. 

For this reason, if you don’t have a parenting order which confers sole parental responsibility on one parent only, you and your former partner share parental responsibility for your children. 

In most co-parenting arrangements, parents will expressly agree that they both have equal shared parental responsibility for the long-term care, development and welfare of the children. This means that parents need to agree about big long-term decisions relating to the child’s welfare and future. Some examples of areas that require unanimous parental agreement are:

• health and medical treatment (for example, if your child’s doctor recommended that your child have surgery in an attempt to rectify a medical condition) 

• education (for example, where your child will attend primary and high school)
• the child’s name (for example, if you or your child wishes to change your child’s surname)
• religious and cultural upbringing (for example, what religion your child will practice)
• living arrangements (for example, not making it significantly more difficult for the child to spend time with each parent)

Provided you and your former partner fall into the category where you both have parental responsibility (i.e., if you have an agreement that says you both equally share parental responsibility or you don’t have any agreement), then you must consult with each other and make a genuine effort to reach an agreement about these ‘big picture’ decisions.

What don’t you require consent for in a parenting arrangement?

On the other hand, parents who have parental responsibility for their children don’t need to consult and agree about minor decisions made about their children. The minor decisions for children are made by the parent with whom the children are living at that time.

The Family Law Act does not define what a ‘minor’ decision and the existing case law suggests there is still a grey area between what would be considered a major and minor decision about your children. The gap for parents tends to arise when there is a decision to be made which is not a major decision but either:

1. is a decision which, for the child to attend/complete in its entirety, the other parent needs to facilitate; or
2. is a decision that, if made by one parent without consulting the other parent, takes away the ability of the other parent to make that decision.

What we do know is that a court would consider the specific circumstances and in the context of the best interests of your children.

Despite the uncertainty, in the day-to-day care of your child, the below issues generally don’t require consent from your ex-partner, provided that decision does not expose the children to harm or risk of harm and is in their best interests:

• What your children have for dinner (provided you’re observing any health issues the child has in relation to food such as allergies and any agreed religious practices which may restrict the consumption of particular foods)
• What your children watch on TV 
• What one-off activities the children get involved in
• Which friends the children spend time with
• What clothes your children wear
• What games the children play at your house
• What extra-curricular activity the children enjoy provided the activity occurs only during the time the children are living with you
• Which other people the children see when they’re with you such as their cousins, grandparents or family friends
• What pets you have at your house when the children are living with you 
• When you take your children to the hairdresser (although it is recommended that each parent participate in this from time to take to avoid one parent taking away the ability for the other parent to make this decision)
• What presents you give your children for their birthday or Christmas
• How you discipline your children (although it is recommended that you complete the Triple P Parenting Program to learn positive discipline techniques) 
• What time the children get out of bed in the morning at your house (provided the children attend daycare/school and that this does not create a considerable disparity between the wake-up time at your former partner’s house to avoid the children’s routine being markedly different at your two houses)

Examples of parental agreement exceptions

As we have alluded to above, in most instances, there is an exception to those day-to-day care elements when:

1. Even though they’re a day to day decision, they also fall under the umbrella of a major long-term decisions such as health, education, or religion

For example, a haircut might become a health concern if your child has head lice. It may also be a religious matter if a component of religious observance pertains to the cutting of hair. Similarly, diet might become a religious matter if your child’s faith restricts the consumption of some foods, and one parent is not making suitable foods accessible.  Diet may also fall into the category of a health decision if your child has allergies or food intolerances. 

2. In order for the children to enjoy all of the decision, the other parent needs to facilitate the children’s participation

For example, enrolling in an extra-circular sport may be a day-to-day decision but if it falls on a Wednesday night every week, and the children live with you and your former partner on a week-about basis, the children will miss out on the activity every second week unless your former partner agrees which may not be in the best interests of the children.

3. The decision takes away the ability of the other parent to make that day-to-day decision.

For example, suppose you continuously facilitate your children having their hair cut before the other parent has the opportunity to participate in this with the children. In that case, you may be taking away the ability of the other parent to be involved in this decision or significantly hindering their ability to get engaged. 

This area of decision-making is uncertain. At the end of the day, if you’re implementing a parenting agreement (i.e. a parenting plan or a parenting consent order) and you’re uncertain about whether the decision is major or minor, your children and your co-parenting relationship will benefit from you and your former partner consulting and agreeing about a decision rather than one parent taking the reigns and making decisions for the children which may impact the wellbeing and development of the children without reference to the other parent. 

The rule of thumb: When in doubt, get the other parent’s consent.

What if my partner is unreasonable?

Parenting arrangements usually have a procedure to follow if both parents cannot reach an agreement about a parenting decision. Therefore, if you have a parenting plan or parenting order, check towards the end of the document for a clause that talks about ‘dispute resolution’.

Even if you don’t have a documented co-parenting arrangement, it is recommended that you follow the usual steps of dispute resolution.

Generally, to try and resolve an impasse about parenting decisions, you may start with a conversation with the other parent to try and reach a consensus, provided there are no domestic violence concerns. If there are domestic violence concerns or talking directly does not work, you can seek the help of an accredited Family Dispute Resolution Practitioner. Moreover, if these decisions progress to the courts, you’ll have to provide a certificate from your practitioner stating that both parties made a genuine effort to reach an agreement. 

If the court determines that it is not in the best interests of the children for their parents to have equal shared parental responsibility for their children, the courts may decide on a parenting arrangement that removes joint parental responsibility. 

Subsequently, this may mean that one parent has the ultimate say when it comes to specific parenting areas such as education, or health. Furthermore, they may grant sole parental responsibility to one parent in respect of all decisions meaning one parent has the ultimate say when it comes to the ‘big picture’ parenting matters.

Some final considerations

In conclusion, when it comes to decision-making for a child, it can be tough to figure out which choices require both parents’ agreement. If you’re unsure about whether you need the other parent’s approval, it’s best to talk to your co-parent and work together to come to an agreement. Day-to-day care of a child can have long-term effects on the child’s education, religion, and health. If one parent disagrees with a decision, it could cause the child to miss out on the benefits of the continuity of that decision. Finally, if you can’t come to a consensus with your co-parent, you may need to seek family dispute resolution or even court intervention.  

If you’d like to understand shared parenting arrangements, parenting agreement examples or have any questions about yours, call our friendly team directly or request a call back via the form below