Separation unfortunately means that life for the whole family changes – including your children. Arrangements for children include how much time the children will spend with each parent and who will be responsible for long term decision making.
Care arrangements (formerly known as ‘child custody’) can be a very emotive issue for separating parents. Through our experience and expertise, we are able to provide legal advice and guidance on how our clients should negotiate this difficult time.
Parenting Plans and Consent Orders
Many couples are able to reach a workable agreement regarding children’s arrangements. It is advisable for these arrangements to be set out in either a parenting plan or consent orders filed with the court. We can assist with either of these options.
A parenting plan is an agreement made between parents regarding the ongoing and future arrangements for children. Parenting plans are not legally enforceable however are taken into account if one of the parties subsequently applies to the court for a parenting order to vary the parenting plan.
A consent order is a legally binding agreement with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend court, however have the same force as an order made after a court hearing.
Mediation and Family Dispute Resolution
Where parents are unable to reach agreement regarding parenting arrangements, they must attend mediation prior to commencing court proceedings. Exceptions to compulsory family dispute resolution applies in certain circumstances such as where there are issues of family violence or abuse.
Mediation is offered by a number of government agencies including The Family Relationships Centre. A Family Dispute Resolution Certificate must be filed with an application for a court to determine parenting matters.
Going to Court
Where it is not possible to reach an agreement, we are able to assist in drafting court proceedings and court representation. There will be a range of factors to consider in determining the future care and responsibility for the children. The overriding principle considered in parenting matters however will be that the best interests of the child are paramount.
In some circumstances the court may appoint an Independent Children’s Lawyer (ICL) or order that a family report be prepared by a psychiatrist or psychologist. An ICL is usually appointed in complex matters or matters involving allegations of abuse, neglect, family violence or mental health issues. The purpose of a family report is to address matters from an independent perspective and to propose arrangements that focus on the best interests and welfare of the child.
What does equal shared parental responsibility mean?
The presumption of equal shared parental responsibility comes from the Family Law Act which provides that ‘when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’.
The presumption is subject to exceptions such as where there are issues of family violence or abuse.
Equal shared parental responsibility means that each parent should be jointly and equally responsible for significant long-term matters concerning their children such as making decisions about their health, welfare, religious and cultural upbringing and education.
The principle of shared parental responsibility has often been misconstrued with separating couples believing that it is a ‘given’ that a child or children will spend equal time living with each parent after separation. This is not necessarily the case – living arrangements are decided with the main objective of the best interests for the child or children, and with practical approach to what is realistic in light of the family dynamics, work commitments and other responsibilities.
If equal time living arrangements are not appropriate, then the court will consider the child spending substantial and significant time with each parent.
In determining the best interests of the child, the following may be relevant:
- any views expressed by the child;
- the nature of the existing relations between the child and his or her parents as well as any other significant people such as grandparents and other relatives;
- the extent to which each parent has already participated in the child’s life;
- the likely effect on the child or any significant change in circumstances;
- the age and maturity of the child;
- any cultural matters that should be
Factors regarding the practicalities of an equal time arrangement may include:
- how far apart the parents live;
- the proximity of each residence to the child’s education centre or child care;
- the parents’ capacity to implement equal time arrangements;
- the parents’ willingness and ability to communicate, resolve conflict and deal with any issues that may arise;
- the availability of the parents both physically and emotionally with consideration to work commitments, commitments to other family members and before and after school care
Each family is unique and parenting matters can be fraught with emotion and conflict. We recommend that advice be obtained as soon as your relationship breaks down to ensure that you are aware of your rights and responsibilities when it comes to parenting arrangements. We find that early advice in these circumstances has been valuable to our clients in the long run.
If you need any assistance, please contact Stephen Roberts at [email protected] or call (07) 4052 7514 for a no-obligation discussion and expert advice.