How do I know what is the best arrangement for our children?
This question is not easy to answer. There are a number of important factors that need to be considered. The Court has set out these considerations to help it decide what is in a child’s best interest if the parents cannot agree.
We recommend that you seek legal advice before agreeing to any arrangements. In the interim, the children’s relationship with each parent should reflect the level of care that parent provided to the children prior to the separation. This allows for consistency for the children until cooler heads can prevail and time can be given to the children to process this significant event. It is not wise to agree to permanent arrangements in the immediate period after separation as each party’s circumstances and the children’s needs can change.
The focus should be on how the children can be best supported through this difficult time. The objective is to protect them from harm including emotional harm while promoting their right to a relationship with each parent or important care giver.
Frequently Asked Questions
What is Shared Care?
Shared care is not specifically defined by law but is traditionally considered to be an arrangement where the children spend seven out of fourteen nights each fortnight with each parent. This can be structured according to the needs of each family.
Is shared care the usual outcome?
No, shared care is not the usual outcome when cases go to Court.
However Courts are required to consider shared care unless there is domestic violence or a child is at risk of abuse.
Shared care is most effective when both parents are in agreement that this is the best option for their children. The circumstances in which shared care can be most beneficial are:
- where the children have a close relationship with each parent; and
- the parents live in close proximity to each other or the children’s schools; and
- the parents have a good working relationship with one another and there are high levels of trust and respect.
What are the other Options?
If shared care is not considered a viable option by both parents or the Court, then the Court must consider arrangements that enable the children to spend significant and substantial time with each parent. This means more than alternate weekends and half of school holidays. This includes other time where a parent can be involved in special occasions and events (such as extra-curricular activities).
There is no set number of nights to be significant and substantial time.
If your children may be at risk of harm then there are supervised contact centres that can be considered to help keep the primary parent and the children safe while enabling them to have a relationship with each parent, to the extent it is in their interest to do so. If you are concerned that your children may be at risk then you need to seek advice before agreeing to any arrangements.
There are any number of options that we can assist you to consider that take into account the practicalities as well as the best interests of your children.
Can I make the decisions for our children or do I need to get the other parent to agree first?
The starting point is that parents should both jointly make decisions for their children that have a long term impact on their well-being. This generally applies unless there is domestic violence or a risk of child abuse.
The types of decisions where parents are expected to consult and agree are:
- where the child goes to child care, kindy or school
- whether a child consults with a mental health professional
- decisions about medical treatment for your child, unless it is to visit the GP for treatment of common ailments
- decisions about relocating where your child lives if the move will make it more difficult for the other parent to spend time with the child
- taking the child on an overseas holiday
- changing the child’s name
- deciding the child’s religious and cultural upbringing
If you are concerned about high levels of conflict and an inability to reach a joint agreement about these important issues then you should seek legal advice before making a decision.
What age can my children decide where they want to live?
There is no specific age that a child or children can make a decision about where a child should live and how much time they spend with each parent.
The Court can take into account a child’s wishes at any age but that is one of many factors the Court takes into account.
There are reasons why a Court may not accept a child’s wishes as important or decisive to the outcome. This can be due to issues of maturity or allegations that a parent has influenced that child’s wishes.
It is very important for parents to protect their children from being requested to express a view and from knowledge of the adult issues in dispute.
Is Counselling an Option?
You can attend family counselling with the other parent which includes or excludes your children to assist you work through specific concerns or to help improve your communications and relationship. This process is not designed to assist you reach a legal solution, but to focus on relationship and trust issues. This process is protected by confidentiality unless you commit any resolution to writing.
What is Family Dispute Resolution (FDR) and how is that different to family counselling?
FDR is a formalised process of negotiating with a third party independent mediator who holds special accreditation. The object of this process is to reach agreement about your child’s living arrangements and the time they spend with each parent and to formalise any agreement reached.
This process is protected by confidentiality unless you commit any resolution to writing.
Participating in Family Dispute Resolution (FDR) – is this required?
You do not need to participate in FDR and can explore other methods of negotiation. However you cannot apply to Court without participating in FDR unless there is a special exception. This can include domestic violence or risk of abuse or special circumstances of urgency (for instance in the event of child abduction).
We can provide you with recommendations about the practitioners who are accredited to facilitate FDR and decide with you whether you should attend this on your own or with the benefit of legal representation.
How Do We Document an Agreement? | Parenting Plans
A Parenting Plan is a written agreement which is dated and signed by each parent and confirms the arrangements that have been agreed upon for the children.
A Parenting Plan cannot be immediately enforced by a Court in the same way as a Court Order.
However in the event of a subsequent dispute a Court is required to consider making Orders that are consistent with any Parenting Plan. This means that the document can have long lasting legal effect and so you should not sign a Parenting Plan without first taking independent legal advice.
The main advantages of having a Parenting Plan are that:
- it is easier to change as circumstances change for your family
- it does not have to be approved by a Court so it is effective immediately
- it enables you to include important day to day matters that a Court will not ordinarily address.
Your Parenting Plan can address day to day parenting issues that reflect commitments each parent is willing to make to provide stability for the children across two households and to support and facilitate trust and respect between the parents.
We can assist you in preparing to negotiate with the other parent and to consider the important issues that should be included in your Parenting Plan.
How Do We Document an Agreement? | Court Orders
A Court Order usually sets out the arrangements for decision making for the children and the time they will spend with each parent.
Court Orders can be made with the agreement of each parent or by a Judge if the parents cannot agree and take the case to Court.
A Court Order is a legally binding document and there are serious consequences if a party fails to comply with their obligations.
The main advantage of a Court Order is that it provides certainty of the arrangements for the children as parties are expected to comply with their obligations.
It is important that Court Orders are drafted with clarity so that each party can understand their obligations. We can assist you in drafting Court Orders.
How Do We Document an Agreement? | Verbal Understanding
Many parents find it difficult to get an agreement in writing. This may be because not every issue is agreed or that one person is unwilling to make a long-term commitment.
While there is no specific legal requirement for parenting arrangements to be in writing, you can encounter problems where there is differing perceptions about what has been agreed or where one parent simply decides they want to change the arrangements and to take matters into their own hands.
You are in a much better position if you can commit whatever agreement you have in place to writing, even if this means some issues are identified as not yet being resolved or that the agreement is in place for a particular duration of time.
We encourage you to seek legal advice if one parent is refusing to commit arrangements to writing.
What If We Can't Agree?
Court Options – Parenting
The Court expects each party to have made all reasonable attempts to have settled the case before filing in Court, save for cases of genuine urgency.
This involves participation in Family Dispute Resolution.
There are some urgent circumstances where it is not possible to participate in FDR. For example, where a child may be at imminent risk of harm or due to domestic violence or abuse. We can assist you to determine if an urgent application to Court is required.
If you have explored your options and have no choice but to go to Court then you will need to prepare the following documents:
- An Application setting out the outcome you are seeking
- An Affidavit (a document you attest to be the truth) setting out the relevant factors the Court needs to consider
You should take legal advice before commencing legal proceedings. These are important documents and a solicitor can help you ensure that all Court documents clearly set out what you are seeking and the grounds to support what you are seeking are covered by facts set out in your Affidavit.
If you have received a Court Application filed by the other party then you also have to prepare Court material in response. This will involve:
- A Response setting out the outcome you are seeking
- An Affidavit (a document you attest to be the truth) setting out the relevant factors the Court needs to consider
Once an Application has been filed you will be expected to attend a Court Date.
On that First Court Date either parent may ask the Court to make Orders for the parenting arrangements which will be in place pending a final outcome.
The Judge relies on the written material at the First Court Date and you are not usually required to give evidence in the witness box on that day.
The First Court Date is also used to identify the issues in dispute and to determine what evidence may assist you and the other party to resolve matters or to be ready to move forward to Trial. This often includes a family assessment by a Social Worker or Psychologist who will meet your children and provide a Report to the Court.
This report is often used by parties to determine if a resolution can be reached without the need for a trial.
If you are still unable to resolve your matter then your case will return to the Judge for allocation to a Trial.
There are different ways that each Judge determines when a case is ready for Trial. When the Judge is ready to allocate your case for Trial they will make Orders that each of you file further Affidavits of any evidence you want the Court to know.
At Trial the Judge then reads the evidence and each party is required to give evidence in the witness box so that what they have put in writing can be tested and the Judge can make findings about what they consider are relevant facts that support the Judgement they will issue. You can put forward evidence from other people if it is relevant and they must commit this evidence in writing and become formal witnesses. After a Trial the Judge is required to make a final decision.
This whole process from the start of an Application until a Trial can take anywhere from 12 to 24 months on average owing to various reasons but predominantly the need for more and more resources due to a backlog of cases awaiting trial.
However many cases will be settled before that time throughout the process.
As your lawyers, we always look to assist you to reach an early settlement and avoid the costly and protracted process of a Trial.