Australian law focuses on the rights of children to have an ongoing relationship with both parents provided this is in their best interests, so that separating from your partner or spouse doesn’t mean that you are separating from your children.
Separating couples are frequently concerned about:
- Who the children will live with?
- How the children will spend time with the other parent?
- How both parents will be kept in the loop about important decisions such as education and health?
There is a presumption that both parents will have a role in making decisions about major long-term issues such as where the children will go to school and major health issues. This presumption won’t apply if there has been abuse or family violence by a parent or if it is not in the children’s best interests.
But doesn’t the law now say that children need to spend equal time with each parent?
No, it doesn’t. The law ensures that the best interests of the children are paramount. When considering what is in a child’s best interests, the court needs to consider facilitating a meaningful relationship between the child and both of their parents but also needs to protect them from harm, abuse, neglect and family violence.
If the court is to provide equal shared parental responsibility then it will also consider whether equal time is in the best interests of the children and whether it is practical. Rather than equal time, for example, the court may order substantial and significant time be spent with the other parent, which might translate to 4 nights per fortnight rather than 7. At the end of the day the court will make orders that are in the children’s best interests.
Where do I start?
Firstly, get legal advice. Your lawyer will take you through all of the areas that need to be considered and let you know whether what you think is a fair approach to arrangements for your children is likely to be viewed by the court as appropriate. If both parents agree, your lawyer can help you formalise this agreement without contested court proceedings.
If you can’t reach agreement, you may consider mediation. If that still doesn’t work, you may need to consider commencing court proceedings.
Legislative requirements mean that you will need to attend family dispute resolution before applying for parenting orders subject to some exceptions such as family violence or urgency.
Accredited family dispute resolution practitioners can issue a certificate and this must be filed with the court application seeking parenting orders unless one of the exceptions applies. The certificate may say, amongst other things, that a person did not attend family dispute resolution because the other party refused to attend or that both parties attended but that one party did not make a genuine effort to resolve the issues.
If a certificate is filed, the court may take it into account in considering whether to make an order referring the parties to family dispute resolution or to award costs against a party.
If your case does end up in court, a legally binding decision will be made by a judicial officer who will decide what is in your children’s best interests.
Why use a lawyer?
We can advise you about the complexities of your specific situation as well as guide you through what can be a stressful and confusing process. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain an outcome that is in your children’s best interests and if necessary, assist you with the court process.
Contact us to discuss your situation and to make an appointment.