The wellbeing and best interests of children impacted by the breakdown of a marriage or de facto relationship are the paramount concern pursuant to the Family Law Act in Australia.
Separation can be a difficult time for the children involved, however, some steps can be taken to reduce the adversity involved within this process. Children who are able to see their parents cooperating with one another will usually adapt to the changes in a more positive manner. With this in mind, parents should be encouraged to set aside their ill-feelings and personal differences when dealing with matters regarding their child(ren). Additionally, the impact of a separation can be mitigated where parents continuously seek to maintain a positive relationship with their child(ren).
In Australia, parents will generally have an equal shared parental responsibility towards their children, meaning that both parents share the responsibility of making major, long-term decisions about the children. When separating, it is best if the parents can come to these decisions in an amicable, private way and then submit a consent order to the court for legal security, but when this is not possible Family Dispute Resolution mediation and possibly even applying to the Court to create a parenting order for you may be the only option.
Decisions Separating Parents Need To Make
The responsibility of raising children requires parents to make tough decisions that reflect their child’s best interests.
There are many different issues/topics/things that parents need to agree on when making decisions that will affect their child(ren) after their separation, such as:
- Living arrangements;
- The amount of substantial and significant time each parent will have with the children (including on birthdays, at extracurricular events or during holidays);
- How the children will communicate with the other parent when they are not together;
- How relationships will be maintained with other significant people in the child’s life, such as grandparents or other relatives;
- Medical, cultural or religious matters;
- How the children will be financially supported; and
- Any other factors that are relevant for your family.
The right decision for all these matters and more will be different for each family, what’s important is making sure that the agreement both parents come to is what is best for the children. There is no single “right way” for a separated family to exist, as long as both parents put the best interests of their children first and maintain their duty of care then the dynamics in the family can remain positive and harmonious.
If an agreement can be reached on the decisions regarding the children then you should submit a consent order to the court to legally protect your rights and responsibilities towards your children. A consent order is a legal document that confirms the agreement that you have reached and makes it enforceable by law. By submitting a consent order you are legally protecting your agreement without having to go to court.
If You Can’t Reach An Agreement
If you and your former partner aren’t able to come to an agreement by yourselves, you will generally have to attend Family Dispute Resolution (FDR), a mediation designed to help separating parents reach agreements about their children. If you are still unable to agree after FDR then you may be able to apply to the Court to create a parenting agreement for you.
The wellbeing of the children is the priority of the Court when determining parenting agreements, the most important considerations being protecting the children from any harm, both physical and psychological, and the benefit of the children having a meaningful relationship with both parents. Ensuring the children are not put in a harmful situation is always the top priority of the Court.
There are many factors that the Court will consider when deciding on a parenting order, including:
- How much time each parent has spent with and communicated with the children, and the relationship the children have with their parents;
- How involved each parent has been regarding major decisions in the children’s lives;
- Financial support from each parent;
- How any change from the current living location will impact the children;
- Practical difficulties regarding how much the children can spend time or communicate with both parents (such as living far away);
- What the children want, if they choose to give an opinion (their maturity and how much they understand is taken into account);
- Whether there has been any history of family violence, or a family violence order involving the children or a member of their family, and
- Anything else the Court considers important.
Generally if there has been no abuse or violence equal shared responsibility will be presumed and the Court will consider how much time it is practical for children to spend with each parent. This does not necessarily mean that a child’s time will be split 50:50 between each parent nor will the time each parent gets to spend with their child be based on gender. Additionally, neither parent can interfere with the other parent’s right to see their child.
During a separation every party experiences a lot of stress and tension, but when there are children involved the priority should always be taking care of their best interests. For more information or advice on your unique case, you can get in touch with the JPLegal team here.