Family Law – Children’s Living Arrangements

One of the most difficult aspects of separation from your partner is agreeing on the ongoing parenting arrangements for your child or children.

A key focus of the Family Law Act 1975 (Cth) is ensuring that in all circumstances the best interests of the child are met. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents and are protected from harm.

Separating from your spouse therefore does not mean that you will be separated from your child or children.

Terms like ”custody”, ”residence”, ”contact” and ”access” are no longer used by the ourt or by lawyers. The term “custody”, for example, was removed from the Family Law Act in 1996 as part of an effort to eliminate attitudes that saw children treated as something to be “won” in a dispute.

Instead, there is a focus on concepts such as “with whom a child lives or spends time” and “with whom a child communicates”. No matter how the issues are defined, they remain the same for separating couples, and you may have questions such as :

  • Who will the child or children live with?
  • How and when will they spend time with the other parent?
  • How do I communicate with the other parent regarding important decisions such as education and health?

Shared Care and Equal Shared Parental Responsibility

The Family Law Act firmly incorporates the concept of shared legal parental rights and responsibilities. Under the Act, there is a presumption that a child’s parents will have equal shared parental responsibility for the child. What this means is that, even if you have separated or divorced, and even if your children do not live with you on an equal basis, unless the Court has made an order that the other parent has sole parental responsibility, you are entitled and responsible to be involved in long-term decision making for the child.

This means that one parent, in the absence of an order, cannot unilaterally make decisions about major long-term issues such as health, or make decisions about which school the children attend, which religion they practice, or even, which city they live in. These decisions should be arrived at jointly by both parents in consultation with each other.

At all times, the best interest of the child is the paramount consideration.

But doesn’t the law now say that children have to spend equal time with each parent?

No, it doesn’t. The law ensures that the best interests of the children are served first. When considering what is in the children’s best interests, the Court must consider balancing the benefit to the children in facilitating a meaningful relationship between the children and both of their parents and protecting the child from harm. Protecting the children from harm is a priority where there is risk to the children that they may be exposed to or subjected to harm, abuse or neglect or family violence.

If the Court is to provide equal shared responsibility, then it will also consider whether equal time is in the best interests of the children and whether it is practical. Rather than equal time, for example, the Court may order substantial and significant time be spent with the other parent, which might translate to be 4 or 5 nights per fortnight rather than 7.

In making such decisions the Court will have regard to various practical and other factors such as the ages of the children and their ability to cope with change, the existence of siblings and their relationship with those siblings, the parents’ respective work commitments, schooling, location and each parent’s attitude towards the responsibilities of parenthood and their capacity to provide for the children’s various needs.

Where do I start?

First, get legal advice from a specialist family lawyer. Your lawyer will take you through all areas that need to be considered and document what you think is an approach to arrangements for your children that is in their best interests. If your partner is agreeable, your lawyer can help you formalise the agreement without proceeding to costly court action.

Parenting Plans and Consent Orders

A parenting plan is an agreement made between parents regarding the ongoing and future arrangements for children. Parenting plans are generally not legally enforceable, however they may be taken into account by the Court if one of the parties subsequently applies to the Court for a parenting order to vary the parenting plan. Parenting plans may be made at any time.

A consent order is a legally enforcing agreement in the form of an order of the Court with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend Court, however they have the same force as an order made after a court hearing.

Parenting plans and consent orders can include matters such as:

  • whether the parents are to have equal shared parental responsibility for the children, and if not, the division of parental responsibility between them;
  • which parent the child will ordinarily live with;
  • whether the child will spend equal time with each parent or ”substantial and significant” time with a parent;
  • provisions for the child to spend special days with each parent such as Christmas, Easter, birthdays, Father’s and Mother’s Days;
  • the time a child will spend with a grandparent or other relative;
  • the communication a child will have with another parent or person;
  • if two or more parties share parental responsibilities, the form of consultation required between them;
  • any aspect of the child’s care, welfare, and development, including education, health, religion and cultural considerations.

Going to Court

If agreement cannot be reached regarding parenting issues it may be necessary to apply to Court for the appropriate orders.

In most cases you will need to attend family dispute resolution (mediation) before applying for parenting orders. If dispute resolution does not resolve the issues, the accredited family dispute resolution practitioner will issue a certificate that must be filed with the court application. The certificate simply states that your differences were unable to be resolved or that your matter was not appropriate to mediate.

If your case does end up in Court, a legally binding decision will be made through a hearing where the judge will decide what is in the child’s best interests.

The best interests of the child are also reflected in the manner in which proceedings are conducted. The impact that proceedings may have on a child is always considered and cooperation between the parents is fostered, with as little formality during proceedings as possible.

One of the considerations the Court will have in mind when making any parenting order is that ongoing litigation between a child’s parents is not in the childrens’ best interests and as such, the Court will endeavour to make the orders that are least likely to lead to further litigation.

Why use a lawyer?

We appreciate that no two families are alike and that parenting matters can be fraught with emotion and conflict.

Our family lawyers are specialist in this area and are led by one of South Australia’s only Accredited Specialists in Family Law. We can advise you regarding the complexities of your specific situation and guide you through this stressful and confusing process.

We help take the heat out of difficult emotional situations and will negotiate on your behalf to obtain the best possible result for your children. If it comes to Court, we are deeply familiar with the court system and can use our knowledge and years of experience to your advantage.

If you need any assistance, contact one of our lawyers at [email protected] or call 08 8443 4888 for a no-obligation discussion and for expert legal advice.