Every parent wants to make sure that they put their children's well-being and safety first. Decisions need to be made about where the children will live, how they will spend time with the other parent, and whether any specific issues need to be addressed to protect the children. When separating, sometimes it is difficult for parents to see eye to eye on issues affecting their children. If you can come to agreement yourselves, with the assistance of mediation or the Family Relationships Centre, that is usually the best way to deal with these matters. You may wish to enter into a Parenting Plan if you reach agreement in this way.
However, it is in your interests to have your Lawyer assist in some way, especially in making sure the agreement or Parenting Plan you enter is written up in a way that will work.
If you are unable to reach an agreement, your lawyer can help you decide what matters are important and how you can reach resolution on these matters.
Since 1 July 2006, the parenting provisions in the Family Law Act have been amended in what has been the biggest overhaul of Family Law in around 30 years.
The old terms "Custody" and "Access" no longer apply in the Family Court, and have not done so for many years now, in relation to children, in an attempt to try and focus on the children's rights to know and be cared for by both their parents.
In all cases considering children, the court must consider what is in the best interests of the child when making any orders. This hasn’t changed, and has been the overriding principle for many yeas. The factors that the Court will take into account when deciding what’s best for the children have changed a little, and include:
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Ensuring that children have the benefit of meaningful relationship with their parents;
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Protecting children from exposure to family violence, abuse and psychological harm;
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If the children are old enough and mature enough, their views of the situation;
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The relationship between the children, their parents, and any other people such as grandparents;
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The past conduct of both parents, including how each parent has encouraged or hindered the children to spend time with the other, and communicate with the other – unless there are family violence or abuse factors; and
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Whether the parents have fulfilled their maintenance obligations.
The new legislation provides an assumption that parents should share equally the responsibility about making decisions about a child’s care and welfare, such as where they will attend school, where they will live, their religious and cultural upbringing, and health concerns. This does not apply to the amount of time children spend with their parents, it is not a “50/50 custody” provision. This presumption may not apply if there are issues of family violence or child abuse.
If the Court considers it appropriate that shared parental responsibility is in place, then this may have some bearing on the amount of time the court orders that a child spends with their parents. The Court will then consider ordering that the children spend equal time or “substantial and significant” time with both their parents. However, this must be in the best interests of the children and reasonably practicable.
So what is “Substantial and significant time”? It is designed to allow the parent to be involved in the children’s day to day routine, and includes time during the week, and weekends. It is also an opportunity for both parents and the child to be involved in occasions of special significance to each other, such as birthdays, Easter, Christmas and other family events.
And what is “Reasonably practicable”? In order for any shared parenting to work, a few common-sense factors need to be present:
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Living in close proximity to each other, so the children can attend the same school, socialise with the same friends and don’t have to travel excessively;
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Both parents need to have some ability to communicate with each other and deal with any difficulties that may arise;
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Both parents need to be able to commit to a shared parenting arrangement and put it into place without stress for the children;
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The children should be able to cope with the arrangement.
Spending time together with children can be in the form of daytime visits, overnight visits, and block time together.
Communicating with children can be done by telephone calls, internet “webchat” utilising webcam, and letters.
While there are no orders in place, there are no set rules about where the children should live or how they should spend time with the other parent. However, you should discuss the circumstances with your lawyer before making any changes to your situation. If you or the children are in danger, you should take steps to ensure your safety and the children's safety and then contact your lawyer for advice as soon as possible.