Going through a separation can be a difficult time for both you and your family. One of the most important matters you will need to consider is working out parenting arrangements for your child. Below are some of the most common questions asked by clients when separating.
How do we sort out parenting matters?
If you and your partner can agree on parenting arrangements, you can make a parenting plan. It can be an agreement made between yourselves or it can be made at a mediation. It must be in writing, dated and signed by both parties. However, it is important to note that a parenting plan is not binding or enforceable. This means that if one party does not comply with the parenting plan, nothing can be done about it by the other party.
The best option if there is agreement, is to enter into consent orders which detail the parenting arrangements. If you need to sort out property matters as well, it can all be done in the same consent orders document. Consent orders are binding and enforceable by the court. Your lawyer can prepare the consent orders and then they are simply sent to the court to rubber stamp them and then they are binding. In this situation, you do not need to attend court.
If you cannot agree on parenting arrangements, the only option is to go to court. Before doing so, you and your partner must attempt family dispute resolution and obtain a certificate to file with your application, unless an exemption applies. Some situations where an exemption will apply include where the application is urgent, there are allegations of family violence or a risk of family violence.
If family dispute resolution is unsuccessful or you are exempt from attending family dispute resolution, you will need to file an Initiating Application, Notice of Risk and Affidavit with the court. Your partner must be served with the documents and then they are required to file responding documents. In this situation, a Judge will decide what the parenting arrangements should be.
Which parent will the child live with?
The Family Law Act 1975 now requires the Court to apply a presumption that it is in the best interests of the child for both of the child’s parents to have “equal shared parental responsibility”. Parental responsibility refers to the duties, powers and responsibilities that parents usually have in relation to their children.
Equal shared parental responsibility effectively means that both parents are responsible for making decisions about the long term care, welfare and development of the children jointly. Long term decisions concern such issues as a child’s education, religion, treatment of longer term medical issues, surnames for the children and applying for passports and overseas travel.
There are exceptions to the presumption of equal shared parental responsibility, which include where there has been abuse of a child or family violence, or where it would not be in the best interests of the child for both parents to have equal shared parental responsibility.
Equal Time or Substantial and Significant Time
Where the Court finds that parents have equal shared parental responsibility for their child, the court must consider whether to make orders for equal time, or substantial and significant time.
“Equal time” means that the children spend an equal amount of time with each parent. This may mean that the children spend one week with each parent, or spend the same number of nights each week, fortnight or month with each parent.
“Substantial and significant time” means that the children spend time with each parent during school days, weekends, school holidays and to be involved in the children’s daily routine and for events that are of significance to the parent and the child.
Of course in making such an order the Court must consider whether it is in the child’s best interests for this time to occur and that it is reasonably practicable for this time to occur.
Small day-to-day decisions, such as what time the child should go to bed and what clothes the child should wear, are determined by the parent who has care of the child at that time.
Are the child’s wishes taken into account?
One of the considerations the court takes into account when determining what is in the best interests of the child and what parenting orders should be made, are any views expressed by the child. The child cannot give evidence in the Family Court, so their views and wishes are normally expressed through a family report. A court may appoint an independent children’s lawyer (ICL) where applicable, to represent the child.
Can I take my child on an overseas holiday?
If you are planning an overseas holiday with your child, you should advise the other parent of your intentions as soon as possible. To obtain a passport for the child, both parents need to provide written consent. You should also provide the other parent with full details of where you are staying, including contact numbers and addresses, and provide them with your itinerary.
Can I relocate interstate or overseas with my child?
If you wish to relocate with your child, you either need permission from the other parent or an order from the court. The court must consider whether it is in the bests interests for the child to relocate and not have a significant relationship with the other parent.
If you are concerned that the child may be removed from Australia without your permission you can apply to the court for an order that either:
- prevents a passport being issued for the child;
- requires a person to deliver a child’s passport to the court; or
- prevents the child from leaving Australia.
You can apply to the court to have your child put on the ‘airport watch list’. If your child is on the list and someone attempts to take the child out of Australia, Customs will alert the Australian Federal Police and the child will be stopped from leaving. Alternatively, you can apply to the court for a recovery order seeking that the child be returned to your care to prevent them from being taken overseas.
Will my partner have to pay child support?
Child support is governed by the Department of Human Services. If you and the other parent cannot come to an agreement about how much child support is to be paid, the Department of Human Services will assess how much should be paid. The amount of child support payable is calculated using a formula which includes the income of both parents and how much time the child spends with each parent. Child support usually ceases when the child turns 18 years of age, however, if the child is studying or has a disability and you are still caring for the child, you may be entitled to receive adult child maintenance.
The above are just some of the issues to consider when negotiating parenting arrangements. Considering these types of issues can be a difficult and overwhelming experience, so it is always recommended that you have an experienced family lawyer to help you through the process.
Please note the above is intended to be commentary and general information. Commentary and general information should not be relied upon and substituted for legal advice. Formal legal advice should always be obtained, if you would like to receive advice specific to your circumstances please contact our office on 9743-1333.