Wondering what happens to the kids if you and your partner were to separate?
Your relationship status with your partner might be changing but to your kids you are still their “Mum” or “Dad”.
How separated parents treat each other can have a significant impact on how children cope with their parent’s separation and change to their living arrangements.
Each family is different and will process the breakdown of their family unit in a different way.
Whether you need:
♦ expert advice about your post separation parenting options.
♦ assistance with negotiating parenting arrangements with your former partner.
♦ assistance with drafting a Parenting Plan.
♦ assistance with drafting Consent Orders for parenting orders.
♦ expert advice about seeking the recovery of children.
♦ assistance with drafting court documents for disputed parenting proceedings.
♦ representation at Court for disputed parenting proceedings.
our Brisbane Family Lawyers will provide you with all of your parenting options in a sensitive and professional way.
Best interests of the child
In making a parenting Order, the paramount consideration of the Court is, what parenting arrangement is in the child’s best interests?
How does the Court determine what is in a child’s best interests?
The primary considerations taken into account by the Court in determining a child’s best interests include: –
- The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
Additional considerations the Court will also take into account include: –
- Any views of the child and the weight to be given to those views.
- The nature of the relationship of the child with each of their parents and also other family members (such as grandparents).
- The steps taken by each of the child’s parents to participate in decision making for the child, in spending time and communicating with the child.
- The steps taken by each of the child’s parents to maintain the child.
- The likely effect of any change to the child’s circumstances, including the separation of the child from either parent or any other child or person.
- The practical difficulty and expense of a child spending time or communicating with a parent and the impact it may have on the child’s relationships.
- The capacity of the child’s parents and any other person to provide for the child’s needs, including their emotional and intellectual needs.
- The maturity, sex, lifestyle and background of the child and each of the child’s parents.
- If the child is of Aboriginal or Torres Strait Islander descent, the child’s right to enjoy their culture.
- The attitude of each parent to the responsibilities of parenthood.
- Any assertions of family violence.
- The terms of any family violence orders.
- Any other factors considered relevant by the Court.
What is Equal Shared Parental Responsibility and when does it apply?
The law provides that the Court must presume that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
If the presumption of equal shared parental responsibility applies, then the child’s parents must consult with each other and make joint decisions about major long-term issues for the child.
Parental responsibility relates to the major long-term decisions that need to be made for a child, such as what school the child should attend and what medical treatment the child should receive.
In some circumstances, it is not appropriate for the presumption of equal shared parental responsibility to apply, such as when the child has been exposed to abuse or family violence.
Equal Time or Substantial and Significant Time?
When the presumption of equal shared parental responsibility applies to a child, the Court must consider whether an equal time arrangement is in the child’s best interests.
Before making a parenting Order for the child to spend equal time with each parent, the Court must also consider whether an equal time arrangement is reasonably practical.
The factors a Court will consider in deciding whether an equal time arrangement is reasonably practical include: –
- How far apart the parents live from each other.
- The capacity of the parents to implement the child spending equal time with the other parent.
- The capacity of the parents to communicate with each other.
- The impact of an equal time arrangement on the child.
- Any other matters the Court considers relevant.
If the Court does not consider that it is in a child’s best interest for an equal time arrangement to be put in place, the Court must consider whether it is in the child’s best interests for the child to spend substantial and significant time with each parent.
Substantial and significant time refers to an arrangement that enables a child to spend time with each parent on both weekdays and weekends, on school days and on holidays. The point is to provide each parent with the ability to be involved in the child’s daily routine as well as on special occasions.
How can I document my parenting agreement?
If you and your former partner have reached an agreement about post separation parenting arrangements, we recommend you consider documenting your agreement in writing. This ensures certainty in the future about the terms of your agreement.
One way you can document your parenting agreement is to prepare a Parenting Plan. A Parenting Plan is a written document that is dated and signed by each parent. It is a private agreement, meaning that the Courts do not ratify it. The main disadvantage of a Parenting Plan is that it is more difficult to enforce than an Order of the Court.
An alternative to a Parenting Plan is to enter into a Consent Order. To obtain a Consent Order, you and your former partner need to apply to the Court to seek that the Court make an Order in the terms of your parenting agreement. The Application is a joint application that is considered by a Registrar of the Court. Upon the issue of a Consent Order, if either party breaches the terms of the Order, the other party can apply to the Court to seek the enforcement of the Order.
My former partner and I do not agree on our child’s parenting arrangements, how do I commence Court proceedings?
The Family Law Courts encourage parents to negotiate where possible an agreement for the post separation parenting arrangements for their children.
Where this is not possible, the Court requires the parents to attend upon a family dispute resolution practitioner and participate in family dispute resolution prior to Court proceedings being commenced. If the family dispute resolution is unsuccessful, the family dispute resolution practitioner should issue a certificate to the parents. This is commonly referred to as a “60I Certificate”.
Upon the issue of the 60I Certificate, either parent can then commence proceedings in either the Federal Circuit Court of Australia or the Family Court of Australia to seek that the Court make parenting Orders in relation to their child/children.
In some circumstances, parents can seek to dispense with the need to obtain a 60I Certificate. This is ordinarily in circumstances where there is some urgency in the Court making parenting Orders, such as where the child is at risk of abuse or family violence.
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