Undergoing a separation is not only an emotional time for you and your former partner, but also for your children. It often involves your ex delaying property settlement, not agreeing to a property settlement, refusing to pay child support or spouse maintenance and making demands in relation to parenting arrangements. This can cause arguments between separating parents which can affect the family dynamic as well as living arrangements, causing confusion and uncertainty for your children.

It is important at the outset of a family law separation to consider the children’s needs first and in doing so you should consider the following:

Best interests of the child

In Australia, family law requires that separating parents act in the best interests of the children and accordingly when there is a separation or divorce it must be demonstrated to the family court that appropriate living arrangements have been made for any children of the relationship.

The Family Law Act sets out the factors the Family Court must consider when determining the child’s best interests. These factors include:

  • The child’s wishes and any matters that are relevant to weight that should be attributed to the child’s wishes such as their maturity and level of understanding
  • The nature of the child’s relationship with each parent and other persons
  • The effect of any change to the child’s living circumstances on the child
  • The practicality and expense of the child having contact with their parents
  • The capacity of the parents to provide for the needs of the child
  • The need to protect the child from physical or psychological harm
  • Any family violence involving the child or his or her family members
  • Any other fact or circumstance the court considers relevant

Parental Responsibility

Although there is a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility for their children, in a family law dispute this may not be suitable. Equal shared parental responsibility refers to the role each parent has in making decisions about major long-term issues such as the child’s education, religion, name and health.  The presumption does not apply if a parent has abused the child or committed acts of family violence or if the court finds it is not in the best interests of the child for both parents to have equal shared parental responsibility for the child.

Child Custody

Parental responsibility is different to child custody and there is no presumption that the parents should have equal time with their children. Whilst terms such as child custody are no longer used in Australian family law, the term “substantial and significant time” is used to describe an arrangement where a parent spends time with their child/ren on weekdays, weekends and holidays as well as on special occasions.

This means that each parent has meaningful involvement in the daily routine of their child/ren. However, the court will consider what is in the best interest of the child as well as how far apart the parents live and whether the parents can communicate effectively with one another and co-operate with each other to resolve issues that arise when making parenting Orders.

Parenting agreements and parenting plans

Where there is cooperation and open communication between both parents, you may not wish to involve the court in your parenting arrangements. A parenting agreement is an understanding between both parents as to the arrangements for the children. Such agreements are informal and can be oral or written. A parenting plan on the other hand is a written record of this agreement, which is signed and dated, although not legally enforceable it is still recognised by the Court as an agreement between the parties.

Consent Orders

Given that parenting agreements and parenting plans are unenforceable, it is best practice that where parents agree to an arrangement, they formalise them in the form of consent orders which are then made by the Court. By formalising your parenting arrangements through Court Orders, you are ensuring that your children have a secure and predictable routine which reduces conflict and stress for all involved and eliminates the need for consent communication between the parents in relation to care arrangements. Further, if the parenting Orders are breached, there is recourse available through the Courts to enforce the Orders.

child custody

Parenting Orders

However, if you cannot agree to Consent Orders with your former partner, you may need to approach the Court to make Orders in relation to the time your child spends with you and the other parent. Whilst the Court will encourage the parties to resolve their dispute through alternatives to litigation such as mediation, it is also recognised that there are instances where this is unsuitable for the parties, such as where family violence is involved. Where the parties cannot agree through court mandated mediation, you may have no choice but to have your parenting dispute determined by a Judge at a contested hearing who will make Final Orders.

Dettmann Phair Lawyers: Your Legal Guide in Child Custody Matters

If you have separated from your partner and have children under the age of 18 years, we can assist you to come to an agreement with your former partner which is suitable for your family. Where you cannot reach agreement, our experienced family law solicitors can fiercely advocate for you and your children in the Federal Circuit and Family Court of Australia.

Visit our child and parenting matters page for further information on our child custody services.

Call us on 02 9412 4500 today to arrange an appointment with one of our family law solicitors to discuss your  needs.