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What about the children?

Family dispute resolution

When you are separating, it is important to obtain independent legal advice about your rights.

Your solicitor will tell you about the family dispute resolution methods available to you before going to Court. They include negotiation, counselling, mediation, arbitration, collaborative law and child-inclusive processes. If there is a high level of emotional conflict or hostility, a power imbalance or domestic violence, some of these methods may be inappropriate.

Family Relationship Centres have also opened in many places where people can have three hours of free advice and assistance about their separation issues. You may be referred for reconciliation or separation counselling or for mediation. In most cases, it will be necessary for both parties to attend at counselling or mediation with a registered family dispute resolution provider before they can start proceedings for parenting orders.

Often it is useful to reach a short-term or interim agreement on matters such as occupation of the home, where the children will live, contact and child support.

Separation or reconciliation counselling can help at this time. Once matters settle down and both parties accept that the separation will be permanent, it may be much easier to resolve the outstanding issues.

What are my responsibilities as a separated or divorced parent?

All parents, whether married or not, have a responsibility to ensure that their children receive adequate and proper parenting. All parents have the responsibility to promote the best interests of their children. Under the Family Law Act, parental responsibility for children does not end with separation or divorce, but continues until each child reaches at least the age of 18.

Except when a child is at risk of abuse or neglect or it is contrary to a child’s best interests, children have the right to live or spend time with both their parents and other people significant to their care, welfare and development, such as grandparents.

Parents should try to agree about matters concerning their children. They share the responsibilities for making decisions about major long-term issues. When an agreement is reached it can be made legally binding by ‘consent orders’. Some parents choose to use parenting plans which are less formal.

Can I get custody or have access?

The old terms ‘guardianship’, ‘custody’, ‘access’ and ‘contact’ have gone. Now you may seek parenting or shared parenting orders, including orders dealing with:

• The person or persons with whom a child is to live.
• The time a child is to spend with the other parent.
• The allocation of parental responsibility.
• Consultation between parties where there is shared parental responsibility. 
• How to vary orders as the needs of the children or parents change.

What if we can’t reach an agreement?

Parents must exercise their responsibilities in the best interests of the child, but if they cannot do so or cannot come to an agreement, a Court will make parenting orders on application.

Best interests of the child

In making an order, the Court presumes that it is in the best interests of the child to have equal shared parental responsibility, but not necessarily equal parenting time. If there has been abuse or violence seen by or involving the child, or there are other reasons that it is not in the best interests of the child, then the Court should not order equal shared parental responsibility.

If equal time is not appropriate, the Court must consider if substantial and significant time would be in the child’s best interests. The Court has regard to a list of primary and additional considerations to determine what is in the child’s best interests.

The primary considerations are the right of children to know their parents and to be protected from harm. What is in the best interests of the child is the paramount consideration for the Court.

The additional considerations include matters, such as:

• The views of the child and the weight which the Court should give to their views, depending on age, maturity etc. 
• The prior involvement which parents have had in the child’s life.
• The willingness and ability of each parent to encourage and facilitate the other parent’s involvement with the child.
• How any change might affect the child. 
• Practical difficulties and expense in seeing a child. 
• The capacity of each party to provide for the needs, including the emotional and intellectual needs of the child. 
• The maturity, sex, life-style and cultural background of the child and parents, including the right to enjoy their culture.
• The attitude to the child and responsibilities of parenthood shown by the parents. 
• Any family violence involving the child or a member of the family.

How to change parenting arrangements

Once parenting orders are made, the Court will only change those orders if it is satisfied that there has been a significant change in circumstances to justify the orders being varied. Normally it is easier to change the provisions of a parenting plan. However, parenting plans do not have the same enforceability if they are breached.

The Court often requires parents to meet with a family consultant to try to reach agreement on orders to be made. Court hearings in children’s matters are less adversarial than they previously were. Many cases are resolved once a family report is prepared by a family consultant or counsellor. Often the Court will appoint an independent children’s lawyer to represent the child.

Apprehended Domestic Violence Orders

If violence, threats or verbal abuse occur in your relationship, it may be necessary to obtain an Apprehended Domestic Violence Order from a Local Court. In serious or urgent cases, a police officer may seek the order on your behalf. If you are afraid of your partner or a family member, tell your Solicitor who will advise you how to obtain an order to protect yourself and your family.

How will a solicitor help me?

Your solicitor can:

• Advise you of your legal rights. 
• Advise you if you may be entitled to Legal Aid.
• Tell you which method of primary dispute resolution may be best for your case.
• Assist you to negotiate parenting orders or refer you to a counsellor or mediator. 
• Check any agreement you make with your spouse on shared parental responsibility for children.
• If you must apply to the Court, prepare documents in support of your application to establish that it is in the best interests of the children for the Court to make the orders you seek. 
• Interview your witnesses and prepare affidavits of their evidence. 
• Present your case or engage a barrister to represent you in Court if it must go to a hearing.
• Help you to enforce or consider a variation of your parenting orders. 
• Collaborative lawyers will help you to resolve all issues without going to Court.