Not only is this the most stressful time for you as a parent but the children will probably be affected in some way by your separation. Children might react in different ways depending on their age. Whether you and your partner are amicable or not may also affect your children.
It is vital that you get legal advice at the earliest opportunity to understand how to navigate this difficult and emotional time.
To get some free, personalised advice on your children’s matter, please click the tab ‘Get Started Online’ at the top, right-hand side of this page, and answer some simple questions. You will then be provided with a report that you can keep. You can take this report to a solicitor of your choice or engage Vania Holt Legal to represent you – the choice is yours! But you can keep the report for free anyway.
How does the Court decide who is responsible for the children’s welfare?
The court looks at the ‘best interests of the child’ and you will hear this phrase commonly used by family law lawyers and advocates. The Court also presumes that both parents are responsible for the care and welfare of their children until they reach 18 years of age. The Court also presumes that ‘shared custody’ will be in the ‘best interest of the child’.
How does the Court decide what are the ‘best interests of the child’?
The Court has a checklist to consider both primary and additional considerations. These are the primary considerations:
- There is a benefit to the child to have a meaningful relationship with both parents; and
- A need to protect the child from physical or psychological harm if subjected to abuse, neglect or family violence.
- Since this is the most important consideration, it is given more ‘weight’ than the meaningful relationship consideration.
- The children’s views having taken into account the child’s subjective features (eg age, maturity and level of understanding);
- The children’s relationship with each parent and other people and relatives;
- Who makes decisions for the children and who spent time with the children;
- The attitude of each parent to parenting;
- Any family violence or family violence Orders;
- The effect of any changed living arrangements on the child;
- The right of an Aboriginal or Torres Strait Islander child to enjoy their own culture;
- Any other fact or consideration the Court thinks is relevant.
There is a presumption that it is the best interests of the child for the parents to have equal shared parental responsibility for the child.
This presumption is rebutted (ie does not apply) if there is family violence or abuse.
Parental responsibility includes responsibility for the care, welfare and development of the child. For example, deciding where the child goes to school, the child’s name and even the child’s living arrangements.
If there is no risk (ie no family violence) of harm then we need to work out whether this equal shared parental responsibility can be achieved by the child spending equal time or substantial and significant time with the parent.
How do I work out if my child will spend equal time with both parents or substantial and significant time with one parent? How is this still ‘shared parental responsibility’?
Even if the Court Orders say that both parents must equally share the parental responsibility, the court then needs to decide the best way to implement this. In doing this, it considers either:
- whether it is in the best interests of the child to spend equal time with both parents AND whether it is reasonably practicable for the child to spend time equally; OR
- whether it is in the best interests of the child to spend substantial and significant time with each parent AND whether the child spending substantial and significant time with one parent is reasonably practicable.
Usually, the best interests of the child will be met if the child spends equal time with both parents but there might be situations where a child spends substantial and significant time with one parent. This might occur when:
- the child spends weekends and holidays and non-weekend and non-holidays with one parent; and
- The time the child spends with one parent which allows the parent to be involved in the child’s daily routine or occasions of significance (eg birthdays); and
- The time the child spends with the parent involves events of significance to the parent.
In deciding what is reasonably practicable, the Court looks to:
- How far apart the parents live from one another; and
- The parents’ capacity to implement a plan for the child to spend equal time or substantial and significant time with each parent; and
- The parents’ communicative ability to discuss plans and arrangements that might arise out of the parenting responsibilities; and
- The impact of the arrangement on the child; and
- Such other matters the court finds relevant.
To make a decision, the court weighs each of these considerations carefully.
What types of Agreements can be reached in relation to children’s matters?
Informal Parenting Arrangements
There is no Court involved here. It is the parties, usually amicably, informally discussing the parenting arrangements. It is often not documented and so it is difficult to monitor and impossible to enforce. For example, if one party enters a new relationship, circumstances may change. If there is a dispute, you have no legally binding document and so it might become a contested Court case.
Parenting plans are also informal arrangements between the parties. Even though they might be in writing, they are not made by the court. If there is a dispute, you do not have a legally binding document to rely on.
If you are concerned that your circumstances might change in the future, because you might have young children, then parenting plans are often used in this situation. You can make a parenting plan at any stage after separation.
An agreement between the parties can be formalised by the Court for Consent Orders. You may have reached a long-term agreement with your spouse and want certainty for the future.
Since these are Court Orders, they are legally binding and enforceable (until your children are 18 years old) so if there is a breach of the Orders by your spouse/partner, you can apply to the court for assistance (contravention application) if the other party does not comply. The Court can do any of the following:
- Modify the parenting order;
- Order the offending party to:
- Pay a fine;
- Enter into a bond;
- Serve a prison sentence and/or
- Pay the legal costs of the other party.
I am not a lawyer! Help me!
If you would like legal advice, please contact us on 0425 736 057 or at email@example.com . Alternatively, you can initiate your family law matter below by clicking on the tab above ‘Get Started Online’ at the top, right-hand side of this web page. This will provide you with a free, personalised report of where your matter sits now. If you decide to engage Vania Holt Legal, we will have this information on file so that it saves you the first hour or two in fees – win/win for everyone! Nothing better than saving money!