VIDEO: What about the children?

When you separate there are so many questions and so much uncertainty.

• Can I still live in the house?
• How will I support myself?
• How can we divide our assets?

These are all valid questions.  For parents however, the questions are even more pressing:

• Who will the children live with?
• How often will they see their other parent?
• Who makes the decisions regarding their future?

My name is Liza Nguyen and I am an accredited specialist in family law.  When clients come in to see me at Maclarens, the very first question they ask if they are parents is usually “who gets the kids?”. 

Understandably, it is an issue of real concern and one that many couples struggle with after separation.

Most importantly, the needs and best interests of the children should remain at the forefront of any discussion.

There are also options that can make life a little easier and provide clarity and routine for children when their parents no longer live together. 

The first option is to negotiate a Parenting Plan with your former partner.

A Parenting Plan is an informal agreement that covers important issues such as:

• Who will the children live with for the main part of the week? 
• How much time they will spend with each parent eg. Is it an even split, or will there be a different arrangement, such as two nights a week and every second weekend with one of the parents?
• How will the parents communicate and share responsibility for decision making?
• How will the child divide their time during major holidays such as Christmas and Easter?
• How will the child be financially supported eg child support or ongoing maintenance payments?
• How disagreements or disputes between the parents will be settled if they arise.

A Parenting Plan is usually negotiated between the parents when they separate, then written down and signed by both parties.  It can also be easily updated through agreement by both parties.   It is also flexible enough to accommodate different scenarios for example, if one parent needs to change the dates that the child will be staying with them, they can negotiate the new dates directly with the other parent.

The Plan is not enforceable by law; however, it does provide structure and routine for the family.  Since a Parenting Plan is also signed and dated by both parties, it can be used as evidence of a previous agreement between the parents or to prove their willingness to work together.

The second option is to seek Parenting Orders.

These are similar to a Parenting Plan in that they outline a routine regarding who the child will spend time with and when, where the child’s primary residence will be, how the child will be supported financially and who can make decisions regarding their health and welfare. 

However, Orders are usually negotiated and documented with the assistance of a family lawyer and then, once an agreement has been reached, they are filed with the Court to be made into Consent Orders.

Importantly, Consent Orders are enforceable by law.  This means that they cannot be changed easily and there are consequences for non-compliance.  For example, if a child is meant to be dropped off at the other parents’ house at 5.00pm on a Friday and it doesn’t happen, the Court could impose a penalty on the non-compliant parent. 

For some separated parents, reaching an agreement on parenting arrangements for their children is not easy.

In these cases, your lawyer might suggest family mediation as the most appropriate way to discuss issues, negotiate disagreements and ultimately reach a solution.

In fact, attendance at mediation is compulsory before any parenting matters will be considered by a Court and couples must show evidence of their attempts to resolve their disagreements through mediation.

Remember, it is always in the best interests of the children to try and resolve parenting issues as quickly and effectively as possible, with as little conflict as possible.  The goal is to minimise the impact of separation and divorce on the children and allow them to develop a healthy relationship with both parents (providing it is safe to do so).

If you are experiencing a family breakdown and have questions concerning parenting arrangements, contact Maclarens Lawyers today on ph: 02 9682 3777 for practical, easy to understand advice and assistance.