When Parents Separate, how will our children be cared for

I have just separated from my partner. What legal issues should I consider regarding parenting?

Following separation, the transition from a two-parent to single-parent home can be daunting. Suddenly, parents need to reconfigure the logistics of their lives, and even straight forward things like how the children get to school each day can pose new challenges.

Depending on your circumstances, you may have a variety of different legal issues to consider when it comes to parenting. Some of the most common issues include:

• Where and with whom the child will be living;
• How much time the child will spend with each parent;
• Who will make important decisions about the child, such as the child’s name, religion (if any), medical treatment and schooling(referred to in family law as “parental responsibility”), especially when you and your ex-partner disagree;
• How to assist the child in developing and maintaining a meaningful relationship with both parents;
• How to obtain Child Support payments in relation to the child; and
• Most importantly, how to protect the child from family violence or child abuse.

 What does the law say about parenting arrangements?

Part VII of the Family Law Act 2001 (Cth) governs parenting issues, from spend time arrangements to parental responsibility. The Act makes it clear that the paramount consideration in making a parenting order is what is in the best interests of the child.

The best interests of the child are determined subjectively according to each family’s circumstances, with reference to the following six considerations:

• What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person caring for the child;
• Any views expressed by the child;
• The developmental, psychological, emotional and cultural needs of the child;
• The capacity of each person who has (or is proposed to have) parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• The benefit of the child being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
• Anything else that is relevant to the particular circumstances of the child.

In the case of children with Aboriginal or Torres Strait Islander heritage, the Court must also consider the child’s right to enjoy their culture, by having the support, opportunity and encouragement necessary to:

• Connect with, and maintain connection with, members of their family and with their community, culture, country and language;
• Explore the full extent of their culture, consistent with the child’s age and developmental level and the child’s views; and
• Develop a positive appreciation of their culture.

How can my ex-partner and I sort out parenting arrangements after separation?

Often for newly separated parents, the easiest and cheapest first step is sorting out care arrangements as between themselves.

This can be done by negotiating with each other or by attending Family Dispute Resolution (“FDR”), a government-subsidised mediation service run by a Family Dispute Resolution Practitioner (“FDRP”). Most FDRPs have a background in psychology or social work, making them well placed to handle difficult emotional situations. With the assistance of the FDRP, the parties sit down together (though not necessarily in the same room) and attempt to reach agreement on a wide variety of issues. Things discussed during FDR a restrictly confidential, meaning nothing you say there can later be used in Court.

When parties are able to reach agreement about parenting arrangements at FDR, they usually draw up an informal agreement known as a parenting plan. The benefit of a parenting plan is that it is flexible and easy to amend as necessary. Should circumstances change, all the parties need to do is write down the details of their new agreement and sign and date the piece of paper.

The biggest drawback of a parenting plan is that it is not legally enforceable, which means that if the other parent breaches your agreement, you cannot take them to Court on that basis. Despite its non-enforceability, a parenting plan can be a good tool to clarify parenting arrangements so that everyone is on the same page and, should the matter end up in Court, can serve as evidence of the parties’ intentions at the time the parenting plan was made.

 What if I can’t resolve the matter on my own? How can Duffy & Simon help?

While FDR is a fantastic service which we usually recommend to clients at first instance, unfortunately, it is not suitable for all matters. In particular, matters where there are significant family violence issues (including intervention orders) or where child protection services have been involved are usually assessed as inappropriate for FDR. Additionally, FDR is not always successful, especially when the parties’ views differ significantly.

When negotiations break down—or are not possible in the first place—or when you have run out of options to try to resolve your parenting dispute, our family lawyers play a critical role in helping you staying focused on key legal issues so your matter can move forward towards resolution.

In particular, we can:

• Apply to the Court to have your parenting agreement formalised through legally enforceable consent orders (provided that both parties agree to this);
• Communicate with your ex-partner in situations where there is an intervention order preventing contact other than through lawyers;
• Negotiate with your ex-partner or their legal counsel regarding parenting issues;
• Prepare and lodge the documents required to initiate Court proceedings or to respond to proceedings initiated by your ex-partner;
• Advise and support you as your matter proceeds through the complicated Court process, including preparing documents and briefing one of our recommended barristers on your behalf;
• Help you navigate a situation where your ex-partner does not comply with your parenting orders, including initiating contravention proceedings;
• Advise you and, if necessary, assist you in applying to the Court for permission to relocate or travel with a child, including obtaining a passport for the child when your ex-partner withholds their consent;
• Draft Binding Child Support Agreement and provide you with the legal advice required to execute the Agreement; and
• Advise you about your rights and responsibilities relating to Child Support, including when you should seek a review of your Centrelink Assessment.

Our experienced, compassionate team understands how overwhelming a separation can be and endeavours to help you resolve your parenting matters in the simplest, most time- and cost-effective manner possible.

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