Agreeing about the care of children after separation is usually the best outcome for both you and the children.
Children can react differently to separation depending on their age and their individual temperament. Conflict between parents can increase the stress for children and it is important that they are supported and encouraged to have a meaningful relationship with the other parent, provided it is safe to do.
Negotiating what is in the best interests of your children during your own stress can be complex. It is important to get legal advice to ensure the best interests of your children are met in any agreement that is negotiated.
Arrangements that are in the best interests of the children
The ideal outcome for children (and the main considerations for the Court) is that:
- Children continue to have meaningful relationships with both their parents and other family members, including grandparents.
- Both parents share responsibility for the children, including the making of major long-term decisions about such things as education, health and religion; and
- The children are safe and not subjected to, or at risk of, abuse, neglect, or family violence.
Every family is unique and there is no one size fits all when deciding on the best arrangements for your children. Considerations include:
- The age of the child.
- The child’s current and likely future routine and how routine will be established and maintained.
- Maintaining important relationships with the extended family and other significant persons in their lives.
- The practicability of the children spending equal or substantial and significant time with the other parent, including whether the parties can communicate effectively, the proximity of your respective homes and the ability of the parents to work together in a child-focused manner.
- The care arrangements for the children after school, on weekends and in school holidays.
- Their right to enjoy their cultural heritage.
- Time spent with each parent on special occasions such as birthdays and Christmas.
- Attendance at school and extra-curricular activities
- Telephone and other communications with each parent.
- Ensuring the children are not exposed to any conflict or derogatory behaviour toward the other parent.
Law in relation to children
When making a parenting order the Court must always regard the best interests of the children as the paramount consideration. Parenting orders can be made in favour of a person who is not the parent of the child.
The primary considerations in relation to the best interests are that:
- Children continue to have meaningful relationships with both their parents; and
- The need to protect the children from physical and psychological harm from being subjected to, or at risk of, abuse, neglect, or family violence.
The court must give greater weight to protecting the child from harm when balancing these primary considerations.
Where do I start?
Firstly, you should consult a lawyer experienced in family law for legal advice, so that you can gain a full understanding of your rights and obligations.
Agreements about the care of the children after separation can be made between you and your former partner, with the assistance of a Family Dispute Resolution Practitioner (FDRP), or through negotiations between lawyers.
Agreements can be informal, can be documented in a parenting plan, or by obtaining parenting orders from a court.
Parenting plans are not legally enforceable but a Court must have regard to the most recent parenting plan, if at a later date one parent makes an Application to the Court for a parenting order.
If parents can agree, parenting orders can be made by consent, by applying to the Court for consent orders. This application does not usually require court appearances. Parenting orders are legally enforceable and failure to comply can lead to contravention proceedings.
If you are unable to reach an agreement on parenting arrangements, then you will need to commence on the path to having parenting orders made by the Federal Circuit and Family Court of Australia.
Before commencing court proceedings for parenting orders, you must attend Family Dispute Resolution. If you are unable to resolve your differences and come to an agreement regarding the care of your children, then the family dispute resolution practitioner (FDRP) will issue a certificate, which must be filed with the court application. If your matter is urgent, for example, due to safety concerns, because your child has not been returned to you, or has been removed or relocated without your permission, court proceedings can be expedited without requiring family dispute resolution beforehand.
Changes introduced on 1 September 2021 now also make it compulsory for each party to comply with Pre-Action Procedures. More information can be found here.
The procedures include:
- Giving a copy of the Pre-Action Procedure brochure to the other party; and
- Finding out about Family Dispute Resolution (FDR) services available to you; and
- Inviting the other party to participate in Family Dispute Resolution;
- If safe to do so, each party must:
- Cooperate for the purpose of agreeing on an appropriate FDR service; and
- Make a genuine effort to resolve the dispute by taking part in FDR.
If you cannot resolve matters at FDR, the Applicant must give the other party written notice of their intention to commence proceedings. The notice must set out:
- The issues in dispute, and
- The orders to be sought if a proceeding is commenced, and
- A genuine offer to resolve the issues, and
- A time, of at least 14 days after the date of the letter, within which the other party is required to reply to the notice.
It is expected that a party will not commence proceedings by filing an application in a court unless:
- The other party does not respond to the notice of intention to commence a proceeding, and
- Agreement cannot be reached after a reasonable attempt to settle by correspondence.
You must file a Genuine Steps Certificate in the Court when starting proceedings, certifying that you have complied with the Pre-Action Procedures
If your case does end up in court, a Judge will decide your children’s living arrangements for you. In making such a decision, the Court will be guided by Court Experts that are appointed during the proceedings. In some cases, your children may also be independently represented by an Independent Children’s Lawyer (ICL).
Why use a family lawyer?
Family lawyers are experienced in this process and can advise you regarding the complexities of your specific situation, as well as guide you through what can be a stressful and confusing process.
How can CCS Lawyers help?
We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain the best possible result for your children. And if it comes to court, our expertise and experience in the court system will ensure the best outcome for you.
Our approach is to alleviate the stress of separation, not add to it.