This will likely be your biggest concern. Who will the children live with and when will you see them? will your spouse make it difficult for you to see the children or speak badly of you to the children? how will you cope on your own? What about holidays and birthdays? what about overseas travel?
Our family lawyers will guide you through all these options. If communication between you and your spouse is still ongoing and the relationship has not broken down completely, we can assist with arranging mediation so that you and your spouse can decide in a safe environment what are the best arrangements for the children. If communication is no longer ongoing or even possible due to family violence or quite simply an inability to communicate, we can assist by communicating with your spouse or their solicitor with a view to coming to an agreement as to care arrangements for the children.
Whilst not always possible, it is desirable for both parents to try to communicate with each other in order to reach an agreement about who the children will live with and how often they will see the other parent. Of course, if there has been family violence this will not necessarily be possible, and mediation may not be an option. Our family lawyers will assist to keep you focused on the best interests of the children and take all necessary steps to ensure that all the circumstances are taken into account to ensure the children are well protected.
If there has been family violence, we can discuss your options in terms of Apprehended Violence Orders (AVO) and filing any necessary Notice of Risk. We can also assist you with obtaining an exclusive occupancy order thereby allowing you to reside in the family home with the children pending an outcome of property settlement.
There are essentially two ways of formalising care arrangements for Children:
- Parenting Plans; and
- Consent Orders.
1. Parenting Plan
A Parenting Plan, is a plan agreed between you and your spouse, and formally drafted, however, it has no legal effect, and its purpose is simply to give more certainty around the agreed care arrangements, namely something that you can refer back to if arrangements become confused.
A solicitor can draft a parenting plan for you, and it is also often quite common for mediation centres to assist you and your spouse in drafting a plan.
You should be aware that as this is simply an agreement between you, it is not legally binding and if either party breaches the plan there is no effect and the other person cannot enforce the arrangements. However, a Parenting Plan may be considerably less expensive than having formal Consent Orders drafted and filed with the Family Court.
2. Consent Orders
Consent Orders are essentially a written agreement between you and your spouse, which has been filed with and approved by the Court, thereby becoming a Court Order, which is binding on you both. Consent Orders can be used to set out how any children of the marriage will be cared for after separation. The Consent Orders will refer to who the children will live with and the days and times they will see the other parent. It will cover times each parent will spend with the children over Christmas, school holidays, birthdays, and Mother’s/Father’s Day. The Consent Orders can also deal with arrangements for overseas travel; Responsibility for day to day decisions of the care of children; and what steps should be taken in emergency situation. They can also cover ability to apply for passports and a parent’s conduct around the children, such as not drinking alcohol whilst in the company of the children.
If communication is possible then it is desirable that parents will first discuss these issues between them, and if an agreement can be reached, that agreement can be drafted in the format required to be submitted to the Court. This is desirable as it maintains a level of amicability between you, and also keeps your legal fees down.
If an agreement cannot be reached between you, you may consider attending mediation with a view to working out the issues. If after attending mediation an agreement still cannot be reached between you and your spouse it is common that your respective solicitors will try and negotiate on your behalf with a view to working out any issues.
Once an agreement is reached between you that agreement will be formalised into the type of writing necessary for the agreement to be drafted into Orders, known as Consent Orders. The Orders will then be filed with the Family Court of Australia, and once approved by the Court will become legally binding on both you and your spouse. This means that if either you or your spouse breach the Orders, proceedings for the breach can be taken.
When considering what arrangements should be made for children, you will need to be considering matters such as:
- The need for the children to maintain a meaningful relationship with both parents;
- the need to protect the children from harm;
- the views and wishes of the child;
- the age of the child or children;
- the likely effect on the child, of any change in the child’s circumstances such as moving schools;
- the cost involved, should one parent decide to relocate a considerable distance; and
- practical factors such as housing, schooling, after school care, health arrangements, communication between each parent and the child, and financial support.
Ultimately it is important that you and your spouse come to some agreement in relation to the time each of you will spend with the children, where the children will live and how the children will be cared for emotionally and financially. Any decision you make will need to be in the best interests of the Children.
If you cannot agree on how the children are to be cared for, and when they will spend time with each parent, then the issue will eventually end up in Court and the Judge will make Orders in relation to how the Children are to be cared for. These are known as parenting orders.
If you are unable to reach an agreement on parenting either by yourselves or through meditation, you can ask the Court to make Orders for you. The Court can make a Parenting Order, which is a legally enforceable Order setting out how the children are to be parented in terms of care and time spent with each parent. Prior to any hearing being listed the Court will require that you and the other parent attend Family/Dispute Resolution and obtain a certificate. However, you do not need to attend Mediation if there is any threat to your safety. If your partner refuses to attend or join in mediation, you can approach the Court directly in order to ask that orders may be made.
Whilst you are waiting for the Court to make Parenting Orders we can ask the Court for Interim Orders to be made, which will cover care arrangements whilst waiting for a Final Hearing. The types of Orders commonly sought are orders as to who the children are to live with, and arrangements for time spent with the other parent. These Orders can also cover communication with the other parent via telephone, skype, and email. They can cover the conduct of a parent whilst in the presence of the children, the location in which the children will live, time spent with extended family such as grandparents, overseas holidays and any other factor that the Court considers to be in the interest of the children.
Section 61DA of the Family Law Act, provides for a presumption of shared parental responsibility, this does not mean equal time, rather it means you are both responsible for making long term major decisions for the child, such as schools, medical treatment etc).
However, Section 61DA(2) of the Family Law Act, provides that the presumption of shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Family violence is defined under the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family or causes the family member to be fearful. Examples of behaviour that may constitute family violence are assault, sexual assault, stalking, repeated derogatory taunts, intentionally causing damage or destroying property, unreasonably denying financial support needed to meet the reasonable living expenses, preventing a family member from making or keeping connections with his or her family, friends, or culture. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects. examples include overhearing threats of death or personal injury, seeing or hearing an assault, comforting or providing assistance to a person just assaulted”.
When making any Parenting Order, the Family Act 1975 requires the Court to hold the interests of the Child as paramount, and when considering what Orders to make the Court must refer to Section 60B of the Family Law Act, which provides how the best interests of the children are met.
Section 60CC of the Family Law Act, sets out how the court can determine what it is the best interests of the child. This section 60CC is broken down into two parts Primary Considerations and Additional Considerations.
The Primary Considerations are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Additional Considerations are
- any views expressed by the child, in light of the age and maturity of the child;
- the nature of the relationship between the child and parent or grandparents;
- the extent to which each of the child’s parents has communicated with and made decisions for the child;
- the extent to which each of the child’s parents has fulfilled their obligations to maintain the child;
- the likely effect of any changes in the child’s circumstances;
- the practical difficulty and expense of a child spending time with and communicating with a parent;
- the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background of the child and of either of the child’s parents;
- if the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- any other fact or circumstance that the court thinks is relevant.
When making a Parenting Order the Court may stipulate
- the person/s with whom a child is to live;
- the time a child is to spend with another person or other persons;
- the allocation of parental responsibility for a child;
- the form of consultation about decisions about a child;
- the communication a child is to have with another person or other persons;
- maintenance of a child not covered by the Child Support (Assessment) Act 1989
- the steps to be taken prior to an application for variation of an order;
- the process for resolving disputes about the terms or operation of the order; and
- Any other aspect of the care, welfare or development of the child or parental responsibility for the child.
Children’s cases are conducted in accordance with Division 12A Family Law Act (‘the Act’).
Proceedings which involve the child’s best interests can be described as an investigation of which order will best promote the interests of the child. The proceedings are managed by the judge and she/he decides which issues are to be determined, whether a particular witness is unnecessary and how evidence is to be given with a view to determining what is in the best interests of the children.
The judge’s role is to look for a solution and the emphasis is what is best for the child in the future, not what happened in the past. However, of course what happened in the past is very determinative of what may happen in the future.
After discussions with the parents and their lawyers, the judge determines what the real issues are, and directs what evidence is required and manner in which it may be given. The judge may limit cross examination and the proceedings concentrate on each parent’s proposals for the future of the child, rather than the past history of the parental relationship, unless the past history is relevant to determine the future.
Seeking Parenting Orders can be a daunting task. Before you embark on any such action, we would urge you to speak to a lawyer practising in this area. We offer a free 30-minute consultation and can discuss issues specific to your case in that consultation, which will give you some guidance on where you stand before approaching the Court.
There are a lot of firms out there that can advise you on your options in a divorce/separation, so what makes us different from the rest?
- Our family lawyers pride themselves on their ethics and our compassion, we will tell you upfront your best options moving forward and the likely outcome, saving you thousands of dollars in legal fees;
- Our family lawyers understand that clients do not have unlimited access to funds and legal fees and court fees can be expensive, for that reason we offer payment plans and a high degree of compassion in relation to fees.
- We understand that you don’t want to have to repeat yourself over and over, and for that reason you’ll be appointed the same family solicitor that will assist you from start to finish.
- We understand that you also need to work and have other commitments and for that reason our family solicitors are happy to conduct appointments on the weekends or after hours.
- We practice in a number of areas and can offer you expert advice on other matters ancillary to your separation, such as making or changing a Will, Enduring Powers of Attorney and Enduring Powers of Guardianship, purchasing or selling a property, even obtaining an AVO or defending one.