Separating from a partner can be especially difficult when there are children involved, and agreeing to changes to your children’s daily activities and living arrangements can be challenging.
Fortunately, Australian family law focuses on the best interests of the children and their right to have an ongoing and meaningful relationship with both parents. Separating from your partner or spouse, therefore, doesn’t mean separating from your child or children. We can provide important advice during this time and also help if you are a grandparent or other family member seeking advice about the care of a child.
What is the position when it comes to parenting arrangements?
The best interests of the children and the need to protect them from harm will be of paramount consideration in all parenting matters. Family law legislation promotes the benefit of children having a meaningful relationship with both parents.
Generally, both parents continue to have equal and shared responsibility for their children after separation. Shared parental responsibility means that each parent has an equal say in important decisions relating to their children, such as healthcare, education, and religious/cultural upbringing. Shared parental responsibility, however, does not necessarily mean that the children will spend half of their time with one parent and half with the other.
How can parenting arrangements be made?
It is ideal if parents can come to an agreement between themselves about the ongoing care of their children. If equal time is not in your children’s best interests when discussing parenting arrangements, in most cases, you should still ensure that they spend significant time with both parents. What constitutes significant time may differ depending on a child’s age and circumstances. For example, a few hours a day, rather than a few days a week, may be better for an infant or toddler.
Agreed parenting arrangements for your children can be implemented formally through a parenting plan or parenting orders.
A parenting plan is a written agreement documenting the arrangements agreed between the parties. The plan may be registered with the Court but is not legally binding. Parenting orders are legally enforceable orders. They can be made between the parties by consent and filed with and granted by the Court.
Getting help to find workable parenting arrangements
If you are unable to agree on parenting arrangements directly with your ex-partner, it is usually beneficial to bring in a third party. A family lawyer can negotiate on your behalf with your co-parent’s lawyer, or you may like to try dispute resolution or family mediation. A mediator can help you to find creative solutions, or even just keep the conversation going when communication starts to break down. An experienced mediator can help keep everyone focused on reaching a solution and, in most cases, can facilitate the process of parents coming to a workable solution. Family lawyers can assist their clients to understand the implications of a proposed agreement which can then be documented and formalised.
Going to Court
When parties cannot agree on the parenting arrangements for their children, they can apply for a Court to determine the matter. Parenting disputes are dealt with in the Federal Circuit and Family Court of Australia.
Children’s matters can cover a range of issues including who a child will live and spend time with, who will have parental responsibility for the child, how a child will communicate with a parent when they are not in their care, and matters relating to health care or education. Proceedings can involve parties other than the parents and children, such as grandparents.
Other matters that a Court will hear include recovery orders, relocation disputes or Hague Convention (international abduction) matters.
Before applying for parenting orders, and unless extenuating circumstances exist, you will need to attend family dispute resolution. If family dispute resolution does not resolve your matter, the Court will hear evidence and make orders in accordance with the best interests of the children. It may be some time before a final hearing and the Court may make interim orders. These are orders that remain in place until the Court can finally hear your matter.
To understand the views of the child, the Court may make an order for a family consultant to interview the child and family and write a report or may appoint an independent children’s lawyer to represent the interests of the child.
It can be hard trying to work through the practicalities of co-parenting, but it is worth persevering to reach an agreement that is in your children’s best interests. Children’s matters are never without complexity and emotion, particularly when you find yourself in litigated proceedings. An experienced family lawyer can demystify the court process and help you reach a solution with the best possible outcome for you and your children.