“Day-to-day care” means having the responsibility for the child’s daily living arrangement. Responsibilities including the child’s safety, making sure the child gets to school and that they are properly fed. Day-to-day care used to be called “custody”.

“Contact” means when the child spends time with a parent or other person who does not have day-to-day care of the child. Contact used to be called “access”.

Care of Children Act 2004, s 16

As the birth parent, you are a legal guardian and are responsible for your child’s day-to-day care.

Care of Children Act 2004, s 16

The other biological parent may also be a legal guardian. If they are guardians too, they will also have a say in the day-to-day care of the child. For more information, see the section on “Guardianship”.

If you and the other parent are not living together, both of you will need to decide how your child will be cared for.

Care of Children Act 2004, s 40

If you and the other parent have made an agreement about how you will care for your child, you can apply to the Family Court to have that agreement made into a Court Order. You will need a lawyer to help you with this. See the section “Getting legal help”

Care of Children Act 2004, s 46E

You can use the Family Dispute Resolution (FDR) service to help you reach a decision. FDR is a meeting with you, the other parent and another person who is trained to help people come to an agreement (mediator).

If you are on a benefit or low wage, FDR will be free. If you don’t qualify for the FDR service, the cost of counselling may be reduced according to your income.

If you don’t reach an agreement at FDR, you can apply to the court for a Parenting Order

If FDR would not be safe for you (for example if you or your child were affected by family violence) you can apply straight to the court for a Parenting Order.

Care of Children Act 2004, s 48

Parenting Orders are orders made by the Family Court to decide who will have day-to-care of a child and who can have contact with a child. They are made as a last resort when parents haven’t been able to agree on these things themselves.

Care of Children Act 2004, s 47B,

If you and the other parent are not together anymore, you usually have to do a free Parenting Through Separation course in the two years before you can apply for a Parenting Order. The course might also help you to reach an agreement. You do not attend this course with the other parent of your child, but you can take a support person with you.

You may also need to use the FDR service. See the above question “What if the other parent and I can’t agree on day-to-day care or contact?”

If you still haven’t reached an agreement you can then make an application to the court for a Parenting Order.

There’s a filing fee for an application for a Parenting Order (unless you are eligible for legal aid). You can also make an application to waive the fee if you can’t pay it.

Care of Children Act 2004, s 58

Supervised contact means that contact is overseen by an approved organisation or a suitable person approved by the Family Court, such as a relative or family friend. The cost of supervised contact is paid by the government.

Care of Children Act 2004, ss 4, 64

In making a decision about the care arrangements for a child, the most important thing the court will consider is the welfare and best interest of the child. The court has to recognise that it is important for both parents to be in the child’s life.

This means that the court will usually make a decision that makes sure the child is able to have a continued relationship with both parents, unless that would not be in the child’s best interests.

Care of Children Act 2004, ss 48, 55

A Parenting Order will record which parent has care for the child and at what times. For example, it could require that your child will stay with you from Monday – Thursday, and with the other parent from Friday – Sunday. It could also deal with who picks up your child from school and who drops them off. Your lawyer will explain the order to you.

If you and the other parent live in different neighbourhoods, the order could mean that your school-aged child stays with one parent during school terms, so that they don’t miss out on school.

A Parenting Order could also record when the other parent can contact the child. For example, it could be that the child is in your care at all times, but the other parent can contact the child during weekends.

Parenting orders can also have conditions on how you, or the other parent, take care of your child, or how either of you are able to see your child.

Conditions could include:

• a parent must make sure that the child is wearing a seatbelt when in the car,
• a parent needs to be supervised by someone else when they see the child;
• a parent cannot have any alcohol or drugs when they are taking care of, or seeing, the child;
• the parents cannot move towns;
• all parents will get copies of school reports and school notices;
• the child must continue to see a specific doctor / dentist;
• when the other parent has care of the child, they have to call you “mum” or “dad”, or another term that you feel comfortable with. This rule means that the child feels more comfortable calling only you by that name and it also means that the child doesn’t hear the other parent calling you any other names.

There’s a lot of options here and the court could make different Parenting Orders for each child, if there is more than one child in the relationship. This could be because the children are of different ages, or have different relationships with you and the other parent.

When deciding how day-to-day care and contact will be divided between the two of you, the most important thing is the welfare and best interest of the child.

Care of Children Act 2004, ss 40, 68, 78

First you and the other parent should try and work it out between yourselves. You can include your lawyers, or the lawyer for the child, to help you through this process. If you can’t solve this, you can apply to the court to deal with breaches of the Parenting Order.

The court can deal with the breaches in many ways, such as by telling the other party off as a warning or changing the order. In serious situations, the Court can involve the police or a social worker to help enforce the order

It is also a criminal offence to intentionally breach a Parenting Order without a reasonable excuse. A person can be jailed for up to 3 months, or fined up to $2,500.

Care of Children Act 2004, s 47

Other people (like other family members) may be able to get permission from the court to apply for a Parenting Order. There are specific situations where another family member may be able to apply.

For example, if the other parent of your child has passed away, refused contact with the child by the court, or they are making no attempt to have contact, then their parents or siblings may be able to apply for a Parenting Order.

Family Violence Act 2018, ss 90, 91 and 96; Care of Children Act 2004, ss 4, 5, 5A, 58 – 60

You should seek help and report this to the police. Violence against you or your child is a crime.

You can also get legal protection against family violence by getting a Protection Order. If you have a Protection Order against the other parent, they won’t be allowed to live with you or see your child, unless you agree.

For more information on protection from family violence, see the chapters “Family violence and elder abuse” and “Parents, guardians and caregivers” in the Community Law Manual