My partner and I have separated… What happens now with the kids?
Many questions arise when a relationship comes to an end and partners separate.
Who will the children live with?
What time will they spend with the parent they do not live with?
What do we do if we cannot agree?
Is our agreement legally binding?
- your child’s age and stage of development,
- who has been primarily responsible for their care,
- where the child attends school, kindergarten or daycare,
- the distance between where you each live,
- the ability of you and the other parent to communicate and co-parent; and
- whether there are drug, alcohol or mental health issues for either parent.
These are all factors taken into account to determine what arrangements are in the best interests of your child when partners separate.
First step to resolving these issues
Family Dispute Resolution or mediation can assist you to negotiate and come to an agreement regarding parenting arrangements.
You must attempt to resolve parenting disputes at mediation before going to court, unless special circumstances apply. If you are considering mediation, our lawyers can assist you to prepare for mediation.
Agreements reached at mediation can be for a temporary parenting arrangement so that you can trial the arrangement and return to mediation at a later date to review the arrangement.
There is no limit to the amount of times parties can attend mediation.
Where a final agreement is reached about parenting arrangements a parenting plan can be drafted. This is a written agreement between you and the other parent. It is not legally binding but can be used as evidence, if need be, that you had an agreement. Our lawyers can assist you in drafting the parenting plan.
If you want a more formal, legally binding agreement, our lawyers can draft an Application for Consent Orders and a Minute of Consent Orders.
If you agree on parenting orders, the application and minute of consent orders are filed with the court (no one needs to actually attend). Providing the court is satisfied that the agreement reached is in the best interests of your child, the court will make the proposed orders which will then make your parenting agreement legally binding.
In the event agreement cannot be reached at mediation, or if mediation does not proceed because your matter has been assessed as unsuitable for mediation or the other party has declined to participate, an application can be made to the court for parenting orders.
Either you or the other parent can apply to the court for parenting orders at any time providing that a certificate issued from a mediation service (known as a section 60I certificate) in the last twelve months is filed with the application. In a limited number of circumstances, you can seek an exemption from filing a mediation certificate, such as when there is a history of family violence or child abuse, or risk of family violence or child abuse or it is an urgent matter.
When partners separate, our lawyers are experienced family lawyers and will draft all the necessary documents that need to be filed with the court.
What can I expect at court?
At the first hearing date, negotiations will take place in an attempt to resolve the matter either on an interim or final basis.
If you and the other party can reach an agreement regarding parenting arrangements on a final basis and providing the court is satisfied that the agreement reached is in the best interests of the children, the court will make final parenting orders and you and the other party will not need to return to court.
Agreement can also be reached on an interim basis, in which case, you and the other party may trial a parenting arrangement and then return to court at a later date to vary the parenting arrangement. The agreement will be made into interim court orders providing the court is satisfied that the interim arrangements are in the best interests of the children. At this time the court is likely to make procedural orders which might include orders to ensure everyone is safe, order various reports like family reports, mental health reports, and if there are drug and alcohol issues the court may order tests to determine what substances are taken.
If your matter proceeds all the way to a final hearing (only about 5% of cases do) the court will be required to make the final decision regarding long term parenting arrangements.
At the final hearing you and the other parent, any expert witnesses such as psychiatrists and family consultants will be cross examined. That means you have to give evidence from the witness box and the other lawyer (or self-represented parent) will ask you questions.
The Judge will make final parenting orders based on the evidence and of course what is in your child’s best interest.
What does best interests of the child mean?
The phrase “best interests of the child” is commonly used in family law parenting matters when partners separate. The Family Law Act 1975 (“the law”) provides that when making parenting orders, the best interests of the child is the paramount consideration. Rights belong to children in the family law arena and not the parents. Parents have responsibilities.
When deciding what is in the best interests of the child, the court must have regard to the primary considerations which are the child’s right to have a meaningful relationship with both of their parents providing it is safe for them to do so. When considering the two primary considerations the law provides that the court must place greater weight on the child’s safety. The court must then have regard to the additional considerations set out in the law which include:
- The views of the child and what weight should be placed on the child’s views taking into account their age, maturity and level of understanding;
- The nature of the child’s relationship with each parent;
- The extent to which each parent has taken the opportunity to participate in decision making regarding the child and to spend time and communicate with the child;
- The extent to which each parent financially contributes to the child’s needs;
- The likely effect of any changes in the child’s circumstances such as being separated from a parent or siblings;
- The practical difficulty and expense of a child spending time with a parent;
- The ability 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 either of the child’s parents;
- The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
- If a child is Aboriginal or Torres Strait Islander, the child’s right to enjoy their culture; and
- If there is a family violence Intervention Order in place and the nature of the order.
Do I have rights as a parent?
Under the law parents do not have rights, they have responsibilities. The law defines parental responsibility in relation to a child as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. As a parent, you have the responsibility to provide for the proper care, welfare and development of your child but you do not have rights. Children have the right to know and be cared for by both their parents, providing it is safe for them to do so. Under the law, children have a right to spend time on a regular basis and communicate on a regular basis with, both their parents and other people who are important to them. Important people may include grandparents and other relatives, again it must be safe for a child to spend time with these important people.
Do I have rights as a grandparent?
Grandparents do not have a right to spend time with their grandchildren but if a grandparent has been a significant part of a child’s life, it may be considered in the best interests of the child to maintain a meaningful relationship with that Grandparent. If partners separate, a grandparent can also use the mediation process to invite the parents of their grandchild to participate in mediation to discuss spending time and communicating with their grandchildren. If mediation fails, a grandparent can make application to the court seeking orders to spend time with their grandchildren.
I have final parenting orders, can I change them?
Once final parenting orders have been made, an application to court to change the orders cannot be made unless there has been a significant change in circumstances since the orders were made. The purpose of this rule is to reduce the risk of children and families being involved in long court processes.
In deciding whether there has been a significant change in circumstances, the court will consider the changes in circumstances together with the facts of each matter. The changes would need to be of a serious nature to warrant a variation to existing final parenting orders and the court would also need to be satisfied that the variation would be in the best interests of the child. Circumstances that might warrant a change to existing parenting orders include where a parent has become ill, a parent wants to relocate, there has been abuse of the child or where the final orders were made a long time ago and the circumstances of the child and/or the parents have significantly changed.
If your circumstances have changed you should first speak to one of our lawyers to determine the best way in moving forward. You may need to go back to mediation, or you may need to go straight to court.