CHILDREN AND SEPARATION

Published 15 Feb 2016
Maryann Melhem

Parental responsibility

As a parent, you have a legal obligation to be responsible for your children's long term and short term care, welfare and development. This responsibility exists irrespective of your relationship status with the other parent; ie whether you are married, de facto, separated, divorced or otherwise.

Do I have to go to Court for parenting arrangements?

If you and you children's other parent are unable to agree on appropriate parenting arrangements for your children, there are various avenues available to you to try to come to an agreement. These avenues include:

(a) mediation;

(b) negotiation;

(c) family dispute resolution;

(d) arbitration;

(e) collaborative law; and

(f) child-inclusive processes.

Of course, the Court is always available to make a determination as to what parenting arrangements are to be made for your children. The Court requires that you and your children's other parent make a genuine attempt at mediation (unless there are extraneous circumstances, such as domestic violence, which excuse you from this requirement). The Courts encourage parents to make parenting arrangements themselves and for Court to be a last resort.

Formalising the parenting arrangements

If you reach an agreement as to parenting arrangements, you can either put your agreement in writing by way of a Parenting Agreement (less formal and not binding) or you can formalise your agreement and make it legally binding through consent orders approved by the Court.

Although Parenting Agreements are not legally binding or enforceable, the Court will consider the arrangements in the Parenting Agreement before making other/further orders.

What matters can a Parenting Agreement or parenting orders cover?

Whether parenting arrangements are reflected in a Parenting Agreement or by an order from the Court (consent or otherwise), the main matters which should be covered include:

(a) who the children live with;

(b) when (and if) a child is to spend time with the other parent;

(c) which parent is responsible for different aspects of a child's upbringing;

(d) whether the parents have equal shared parental responsibility or whether decisions about the long term care, welfare and development of the child are to be divided amongst the parents;

(e) when parents need to consult each other over the child;

(f) what parents need to do if they need to change or vary the orders.

Children's best interests

When arrangements are being made in respect of your children (whether by a court or otherwise), the children's best interests must always be paramount.

The Court generally presumes that it is in the best interests of the children for both parents to have equal parental responsibility, except where there are instances of or risk of abuse or violence.

Equal shared parental responsibility does not equate to equal time spent with the parents. The "amount" or "share" of parental responsibility is not an automatic reflection of how much time the child spends with each parent. There is no presumption that the child is to spend equal time with each parent.

The Court, in determining the amount of time the child spends with each parent, considers things such as the child's opinion and views, the relationship between the child and his/her parent and other family members, the attitudes demonstrated by both parents towards the responsibilities of parenthood, and issues of domestic violence. The Court also considers the practicality of the arrangements proposed.

If you are separating, or thinking about separating from your partner and require assistance please contact us on 02) 9682 3777.