“I Want What Is Fair!” Parenting After Separation & the Law

When negotiating parenting arrangements after separation, we recommend being informed about:

• What the law in Australia says about parenting arrangements

• The rights and best interest of a child

• Types of parenting arrangements that could be agreed upon 

• Recommendations when negotiating time with your children; and

• How to cope if things aren’t going your way

As family lawyers, people come to us for advice on how to legally set their parenting arrangements after separation. It is in these conversations that people learn that the way parenting arrangements are determined according to the law does not always align with what a parent may consider “fair”.

What is key is not about what is “fair” for parents, in terms of entitlements to see their children. Instead, it is first about determining what is in the best interests of the children, as detailed in the Family Law Act.

What the Law Says About Parenting Arrangements

While you may not anticipate that you will ever end up in Court, you must consider what the law says in relation to the ‘Best Interests’ of any children you have together.

Best Interests of Children 

When a Court is asked to make decisions in relation to children, inclusive of time with parents, the law provides that two primary factors must be considered:

• Firstly, that decisions are made in the best interests and that ensure the safety of the child; and
• Second, give effect to the Convention on the Rights of the Child.

Subsequently, there are six (6) factors which a Court must consider to determine the above primary issues:

• What arrangements promote the safety (including safety from family violence, abuse, neglect or other charm) of the child; and each person who has care of the child;
• The capacity of each parent to provide for the needs of the child (developmental, psychological, emotional and cultural needs);
• The benefit to the child of having a relationship with their parents, and other significant people, including grandparents, half siblings etc;
• Any views expressed by the child (and this will be considered in the context of the child’s age, maturity and level of understanding);
• The child’s developmental, psychological, emotional and cultural needs; and
• Anything else that is relevant to the particular circumstances of the child.

There is also a stand alone best interest factor should the children be Aboriginal or Torres Strait Islander, which provides that the child has a right to access, explore and enjoy or develop a positive appreciation of their culture, as well as the support they will receive to connect with that culture.

Every family is unique and no one family’s circumstances are the same. For example, children with special needs or mental health challenges may not cope with continually moving between households. It may be that these children need more stability and routine than others. It is important that you step back and really consider how the parenting arrangements that you propose will impact your individual child or children, rather than thinking about what might be most convenient for you or the other parent. 

Parental Rights

It is important to know that Australian law has never given parents rights to spend equal time with their children, despite historical amendments to the law.

What may have been considered to be in the best interests of the children in one family, may not be the case in yours and there may be various reasons for this. 

If you have been discussing your parenting matters with people who are not experienced in family law, you may have been misled to believe that equal time is the normal or ‘fair’. While our family and friends are important support networks during these difficult times, it is important to speak with a lawyer who understands the nuances of the family law system and has experience in the way the discretion is exercised.  A specialist family lawyer can work with you to come up with realistic expectations for resolving your parenting matter. It is important to get this advice as early as possible because the decisions you make and the approach you take at the outset of your matter, sets the tone for how your matter will resolve.

A family lawyer’s role is to listen to your situation and your views and provide advice and reality testing about how the parenting arrangements are likely to be determined according to the law.

Types Of Parenting Arrangements After Separation

There are essentially three options for parents when it comes to formalising your parenting arrangements:

1. Parenting Plan
2. Court Order by Consent (Consent Order)
3. Court Order

The first two options are suitable if you are both in agreement. It is highly recommended that you seek advice from a family lawyer before you come to an agreement for peace of mind and awareness of any risk in relation to the terms of your agreement.

What is a Parenting Plan?

A Parenting Plan is a written agreement signed by both parties setting out what the parenting arrangements will be moving forward. The limitation with this however, is that it is not strictly enforceable if a parent does not comply following agreeing.

What are Court Orders by Consent?

This is an Order that both parties agree for the Court to make. It is the way to  formalise and finalise your agreement but when agreed. If one parent does not comply with the Order, it can be enforced through the Court.

What is a Court Order?

This is where a Judge or Judicial Registrar decides what the parenting arrangements should be after consideration of all of the evidence provided by the parents and potentially other experts. It can be enforced if a parent breaches the Order, the same as an Order by Consent.

It is important to note that this avenue is often a very costly, time consuming and emotionally draining experience and something that should be avoided, if possible.

Negotiating Parenting Arrangements After Separation

We know that negotiations can be challenging and what one parent genuinely considers to be in the best interests of their child can oftentimes be at odds with the other parent’s perception. Each parent comes to the table with their different views, perspectives and motivations.

We see that some parents end up agreeing to parenting arrangements which they are not completely satisfied with. This can be for various reasons. Sometimes it is because the costs or emotional burden of continuing the dispute are too high. For others, they may consider it more important to put an end to the conflict for the sake of their children, want to move on with their life and make compromises to get an agreement they can live with. 

Going through a process of having parenting issues determined by the Court however, is even more challenging. 

The risk if parents cannot agree, and they require a Court to determine the arrangements is that they are handing the decision making to a Judge to make the call about what is in best interests for their children. They are giving up control and asking a Judge, who has never met their children (and never will) and does not know their family, to decide what is in their children’s best interests, based upon evidence.

It is important to listen to the advice you receive from your family lawyer as they are best placed to advise you about how the Court is likely to decide your case if the matter were ever to go before a Judge. If you do not take that advice on board, and are unable to reach an agreement with the other parent, you may end up in Court only to get a decision that you (and potentially the other parent) are both not happy with.

How To Cope When Things Aren’t Going Your Way

It is really important to have perspective when you are navigating your way through negotiations and a disputed parenting matter. You and your former partner or spouse are often making decisions at the height of one of the most challenging times of your life and emotions are running high.

The reality for some parents is that there may come a day where you are unhappy and dissatisfied with the parenting arrangements that are in place, whether they be on an interim or final basis and whether you agreed to them or not.

In these times, it is important to take a step back and consider the bigger picture.

These parenting arrangements will not be in place forever. 

Before you know it, your children will be teenagers and no matter what anyone says, they will largely dictate their parenting arrangements and who they choose to spend their time with. It is for this reason that Courts are reluctant to make Court Orders for older children who do and are expressing a strong view about what arrangements they want. 

The relationship that you will have with your children when they are adults, is far longer than the relationship you will have with them as children. 

The point is that in these extremely stressful and trying times it is important to have this perspective. 

Never underestimate the effect that parenting conflict has on a child. 

Some people do not always appreciate that while they may not directly be discussing parenting matters with their children, that children are impressionable and are taking everything occurring around them. They pick up on all of the stress in their home in addition to the behaviours and attitudes of their parents to one another and other members of their families. All of this stress and pressure impacts the child not only in their daily life (for example, their ability to concentrate at school) but it is also the example that they see of adult relationships and will affect the way they form their own relationships in the future.