Often, separated parents are able to engage in child-focused discussion and agree on post-separation parenting arrangements without the assistance of lawyers. This is no doubt the best outcome for separated parents and their children, and one that should always be encouraged unless safety issues are involved.
However, for different reasons, it’s not always possible to reach agreement regarding children's arrangements and sometimes parents will need the help of mediation services and/or a lawyer to resolve some of the following issues:
In Australia, terms such as “custody”, “guardianship” and “access” are no longer used. Instead, the key terms are parental responsibility, living arrangements and spend time arrangements. These are simple and easy to understand terms.
In Australia, the law is clear that except in rare circumstances, parents should have “shared parental responsibility” for their children. This does not necessarily mean that the children should spend equal time with each parent, but it does mean both parents should have input into important decisions in a child’s life, regardless of who the children live with.
A court can grant sole parental responsibility to one parent over another, but this will only happen in a small number of cases. While decision on things like health and education should be reached together, common sense should be used when it comes to day to day issues.
The most important consideration in determining parenting arrangements is that the arrangements for the children must be made in their best interest and not the interests of the parents. In this regard, parents do not have rights. It’s the children that have a right to enjoy a meaningful relationship with both of their parents – as long as it’s safe and appropriate.
The priority of each parent must therefore be to act and behave in a way that is consistent with these best interests. This may involve actively encouraging your child to spend time with your former partner, even if it may be the last thing you feel like doing. Although the relationship between you and your partner may have ended, your relationship as parents is ongoing.
If you are on good terms with your ex-partner and there are no risk issues, it’s usually a good idea to sit down and talk through possible post-separation parenting arrangements between you.
If you can’t reach an agreement, then the next step is generally a mediation. It’s a good idea to get legal advice at this point to figure out whether your proposals for shared parenting are appropriate and realistic.
Except in limited circumstances (including urgent matters and cases involving family violence), parties will be required to attend a mediation/FDR and make a genuine attempt to resolve their parenting dispute prior to issuing a court application.
Parties attend a qualified mediator who will assist them to find arrangements that work best for their children and the family. There are government-funded Family Relationship Centres around Australia and also private mediation options available. If agreement cannot be reached, the parties will be issued with a certificate (confirming they have attempted mediation/FDR) which permits them to make an application to the court.
If mediation doesn’t work, you should seek legal advice because it may still be possible to reach an out of court settlement at this point and avoid a court case.
A court case can take a long time and cost a lot of money. It can also be stressful for the parties involved and have an impact on the children. For these reasons, court should be a last resort if possible but if you need to go to court, make sure you have an experienced family lawyer representing you.
There are many steps along the court pathway, including the preparation and filing of an application and supporting affidavits, hearings and expert reports from psychologists/counsellors. Using an experienced family lawyer will ensure your application is prepared and filed in a manner which optimises a successful result.
Once an agreement has been reached about arrangements for your children it is often important for the agreement to be recorded appropriately.
There are 2 legal options:
A Parenting Plan is an informal agreement between parties that is not approved by a court and is not legally enforceable. Therefore, there is no penalty for breaching the agreement. Parenting Plans may be appropriate where parents get along well and want flexibility instead of a binding court order.
A Consent Order is a written agreement that is approved by a court. The relevant agreement is drafted in legal terms and signed by the parties.
The Application and the Orders are then sent to the court for approval. Once approved, the court will formalise the agreement by way of Consent Orders. This means that the agreement becomes a legally binding agreement and the court can impose penalties if one or both of the parties refuse to follow the Orders.
If agreement has been reached about all issues, obtaining Consent Orders is usually a straightforward process.
The court will only entertain a new application after final Orders are made about children if there has been a “significant change in circumstances”.
This is based on the understanding that it will only be in the child’s best interests to expose them to further proceedings if there has been a significant change of circumstances since the making of the original orders.
There are serious consequences for failing to comply with a Parenting Order. The court can penalise someone for failing to comply with an order without a reasonable excuse.
Depending on the situation and the type and seriousness of the contravention, the court can vary the primary order, make an order for legal costs of either of the parties, impose a fine or even a sentence of imprisonment.