When a relationship breaks down you will have to decide how to divide any shared assets; and if there are children from your partnership, you need to work out how you are going to look after them together. While selling a house or sorting out finances is something that can happen over time, you must organise child and parenting arrangements promptly.
When you separate from your former spouse or partner, one of the most difficult matters to be resolved can be sorting out arrangements for your children.
The first question is who the children lives with and what time they spend with the other parent. These decisions will vary depending on the age of the child and where both parents are living relative to one another and many other factors.
If agreement can be reached between parents through their own negotiation or mediation, this can be documented through a parenting plan which is a written agreement signed and dated by both parents, however a parenting plan is not enforceable like court orders.
Parental Responsibility – Living with and spending time with – what does this mean?
Parental responsibility means all the duties, powers, responsibilities and authority parents have in relation to their children. It usually relates to making decisions around significant issues in the children’s life, such as where they live, where they go to school, what religion is relevant to the children, and significant health matters.
The starting position with parental responsibility is that each parent has parental responsibility for their child. A parenting plan or a Court order can allocate parental responsibility overall or for specific issues. Normally, Courts make orders for parents to have joint parental responsibility, which means they must consult each other in relation to these major issues.
In some circumstances, a parent may have sole parental responsibility such as where the other parent lives overseas and it is not practical to participate in these decisions, or where family violence or other issues of abuse have occurred.
Needing a Court to decide matters
Where parents are unable to agree on parenting matters, then they need to make an application to the Court seeking parenting orders. Should this be the case, we strongly recommend you seek legal advice from a lawyer specialising in family law matters, such as Rose Lawyers.
Before making a decision, a Court will hear evidence from both parents and normally from a child psychologist or social worker who has interviewed the parents and where appropriate, the child, and makes a report to the Court. This is called a Family Report.
The Court can make orders in relation to a range of issues for the child including:
- The allocation of parental responsibility.
- Who the child lives with and what time they spend with other people in their lives.
- How a child communicates with other people including the other parent.
- Financial maintenance of a child.
- How parents will resolve disputes in regard to the implementation of the orders.
- Any other aspect related to the care, welfare or development of the child.
What does the Court consider in making orders?
The primary consideration for the Court is the best interests of the child. To work out what is in the best interests of the child, the Court considers a range of issues.
The main issues that it considers are firstly the protection of the child from harm, both physical or psychological and being protected from abuse, neglect or family violence. The other main issue is the child maintaining a meaningful relationship with both parents.
The Court also considers a range of other issues as appropriate to the circumstances including:
- The views of the child, where appropriate.
- The relationship the child has with each parent and other significant people such as grandparents. Also the effort a parent has made (or not made) to participate in decisions for the child, spend time with the child, or communicate with the child.
- A parent’s efforts in maintaining the child according to their obligations.
- The possible effect of changing the current circumstances including separation from a parent or other significant person such as a grandparent.
- The practical difficulty and expense of the child spending time in communicating with a parent.
- The capacity of a parent to provide for the needs of the child including emotional and intellectual needs.
- The maturity, sex and other relevant lifestyle issues of the child or the parents.
- The attitude of a parent to the child and the responsibilities of parenthood.
- Whether a child is aboriginal or a Torres Strait Islander, that child’s right to enjoy their culture.
- Any family violence involving the children or family.
It is important to remember that everybody’s circumstances are different and no particular factor will be relied more or less in every situation.
If you are unsure of how to approach parenting matters, Rose Lawyers can assist you by providing you with detailed legal advice, guiding you through mediation, drafting parenting plans and orders that can be made by consent or should it be necessary, representing you when you go to Court.