ARRANGEMENTS FOR YOUR CHILDREN

One of the most important issues that runs through your mind when your relationship with your former partner/husband/wife comes to an end is ‘what happens with our children?’.The law sets out guiding principles to assist parents to reach agreement regarding the living arrangements (and other specific issues) for their children or failing agreement, to assist the Court to make the decision on their behalf.

What are those guiding principles? The paramount consideration is ‘what arrangement will be in the best interests of the children?’.

The law provides that a child’s best interests are met through four main factors:

1. ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent that is consistent with the best interests of the child;

2. protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

4. ensuring that parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The principles that underlie these four factors include:

1. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

3 .parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

4. parents should agree about the future parenting of their children; and

5. children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The law presumes that all parents should share equally in parental responsibility for their children meaning that parents are required to make all decisions concerning the child’s long term care, welfare and development jointly. Such decisions include for example, matters concerning a child’s health, schooling or religion.

The presumption for parents to share in parental responsibility may be rebutted such that the decision making surrounding parental responsibility may be exercised by one parent solely in circumstances where:

  • There are reasonable grounds to believe that a parent or persona that live siwth the child engaged in:
    • Abuse of the child, or another child who was a member of the family;
    • Family violence;
  • If there is evidence that satisfies the Court that it would not be in the best interests of the child for the presumption to apply.

If the presumption of shared parental responsibility applies, the Court is required to consider if it is in the best interests of the child and reasonably practicable to spend equal time with the parents.

If the presumption of shared parental responsibility does not apply, the Court can make any order it considers proper and in the best interests of the child.

There are many other considerations set out in the law which guide parents and (if necessary, the Court) in reaching a decision on what future arrangements will be in the best interest of children. Such matters include:

– the benefit to the child of having a meaningful relationship with both of the child’s parents;

– the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse,

– neglect or family violence.

– the views of the children (if they are expressed, and are only considered within the context of their maturity);

– the nature of the child’s relationship with each parent and other significant people;

– the extent to which each of the parents have previously participated in making decisions for the child and spent time with them;

– the extent to which each of the parents have previously fulfilled or failed in their obligation to maintain the child, and their demonstrated attitude to the obligations of parenthood;

– the likely effect of changes in the child’s circumstances (including the effect on the child of any separation from a parent or other child or significant person with whom they have been living);

– the practical difficulty and expense of the child spending time with a parent;

– the capacity of each of the parents to provide for the needs of the child (including emotional and intellectual needs);

– the maturity, sex, lifestyle and background of the child and the parents, and any unique characteristics of the child;

How does this play out in day to day arrangements for the children? If parents continue to have equal shared parental responsibility for their children (and this is most often the case) then they (or the Court) must consider putting an arrangement in place that would enable the children to spend equal time with each parent.

In considering an equal-time arrangement, the parents/Court must determine whether it would be in the best interests of the child and reasonably practicable. An example of an equal-time arrangement could be where children spend one week living with one parent and then the next week with the other or any other combination of days in a period of a week/fortnight/month that would equate equal time between child and parents.

If it is determined that an equal time arrangement would not to be in the best interests of the child or is not practicable, then the parents/Court must then consider putting an arrangement in place that would enable the children to primarily live with one parent but spend substantial and significant time with the other parent (that is, time both during the week and on weekends/holidays). Again, the parents/Court must determine whether that type of arrangement would be in the best interests of the child and reasonably practicable.

The outcome for children is not fixed by law, but rather, open to determination based on guiding principles. This opens the way for us to advise you on how to conduct yourself in order to maximise your prospects under the guidelines and persuade the Court of the outcome you seek.

Until consensual parental arrangements are reached or a Court mandated arrangement is fixed, both parents will continue to have shared parental responsibilityfor their children – that means, they each have the same level of responsibility for their children as the other, and neither has any greater right or claim to time with a child than the other parent.

Many parents will reach their own agreement on the day-to-day arrangements for the children without the need for legal assistance or a Court order. Sensible discussion leading to a consensual agreement should be the paramount aim for separating parents. Consensual arrangements minimise what can be hefty legal costs, maximise co-operative parental ties and minimise children’s trauma. There are non-legal service providers available to assist with these discussions (Phillips Family Law can put you in touch with Family Dispute Resolution Practitioners, counselors, psychologists and mediators).

Understandably, it is not uncommon for parents to be anxious about how this will all play out for them and what it will mean for their time with their children. We can provide you with practical and realistic advice on all matters of concern to you in settling the arrangements. Our firm has unparalleled expertise to:

– provide advice and assistance in your consideration of the future arrangements for your children

– provide advice and assistance in your consideration of the future arrangements for your children;

– provide pre-separation or post-separation advice on how to maximise your opportunity for future time with your children;

– provide representation and guidance during mediations or discussions with the other parent;

– legally document your parenting agreement to ensure it is binding and enforceable;

– advocate on your behalf during Court proceedings and prepare all pre-requisite court documentation.