Key Takeaways
- Parenting Arrangements After Separation – When parents separate, there are a range of decisions that need to be made about the care of the children moving forward. For example, where the children will live, how time with the children will be split between the parents, and who will make decisions about their education and health. The parents must make these decisions based on what is in the best interests of the children.
- Best Interests of the Children – The Federal Circuit and Family Court of Australia (“FCFCOA”) is the Court that hears parenting matters and prioritises the best interests of the children. This includes considering the children’s safety, emotional and developmental needs, cultural ties and the need for a meaningful relationship with both parents, unless the children are or will be exposed to family violence.
- Mediation – Mediation can help parents reach an agreement without going to Court. If no agreement is reached at mediation, a section 60i certificate is issued and parents can then apply to the Court to make parenting Orders that are binding on both parents. The Orders will outline living arrangements and decision-making responsibilities.
- Special Considerations – Some situations, like domestic violence, relocation, or children with special needs, will affect parenting arrangements. The Court will take these factors into consideration when making the Orders.
Separation is a challenging and emotional time for parents and children. When parents decide to separate, one of the most important things they need to figure out is how to share the care and responsibility of their children. Parenting arrangements can be complex, especially when emotions are heightened, but parents must approach the situation with a focus on the best interests of the children.
The FCFCOA provides guidelines and processes to help separated parents come to agreements about how care for their children can be shared between them. This blog will explain the key steps involved in creating parenting arrangements after separation and how the Family Law system works to support children and parents in this difficult time.
Understanding Parenting Arrangements
Parenting arrangements cover a variety of topics, including where the children will live, who will make important decisions about their education and health care, and how time will be shared between the parents.
The Family Law Act 1975 (“the Act”) requires parents to focus on what is best for their children when making parenting arrangements. The law encourages parents to reach an agreement on their own, but if that is not possible, the parents can see that the FCFCOA step in to make a decision.
The Importance of the Best Interests of the Children
In the FCFCOA, the best interests of the children are the paramount consideration when making any decision about parenting arrangements. This means that parents need to consider what will make their children feel safe, loved, and supported, while also meeting their physical, emotional, and developmental needs.
Section 60CC of The Family Law Act 1975 outlines the elements that must be considered when determining what is in the best interests of the children. These include:
- The children’s views: Children who are old enough to express a view are heard through a Court Child Expert. However, their views are only a part of the decision-making process.
- The need for a meaningful relationship with both parents: It is important that children maintain a relationship with both parents, provided it is safe to do so and in their best interests.
- Protection from harm: If there is a risk of harm to the children, such as family violence or abuse, this must be considered when making arrangements.
- The capacity of each parent to meet the child’s needs: Parents must be able to provide for their children’s physical, emotional, and developmental needs.
By focusing on these elements, parents and the Court can ensure that the children’s best interests remain the top priority in any parenting arrangement.
The Steps to Take After Separation
If you and your partner have decided to separate, there are several steps you should take to create parenting arrangements that are in the best interests of your children. Here are some key steps to follow:
Step 1: Take Time to Understand the Situation
Before making any decisions about parenting arrangements, it is important to take time to fully understand the situation. This includes considering the emotional impact of separation on the children. It is helpful to talk to a family law solicitor who can explain the process and provide guidance.
Parents should also consider the following:
- What is the current living situation for the children?
- How much time do the children spend with each parent?
- How do the children feel about the separation?
- Do any of the children have special needs?
- Are there any concerns about risk, family violence or child abuse that need to be addressed?
Taking time to consider these questions will help create a clearer picture of what needs to be included in the parenting arrangements.
Step 2: Try to Reach an Agreement with Your Ex-Partner
The next step is to try to come to an agreement with your ex-partner about the parenting arrangements. This can often be the hardest step, especially if emotions are running high. However, it is important to try to keep communication open and focused on what is best for the children. The following are ways that parents can try to reach an agreement outside of Court:
- Direct negotiation: If both parents are willing to communicate, they can try to discuss and agree on parenting arrangements directly.
- Mediation: Mediation is a voluntary process where a neutral third party assists parents to work through the roadblocks and issues to reach a resolution. Mediation is usually a better option financially and emotionally than going to Court.
The Family Law system encourages parents to reach agreements outside of Court because it can assist in preserving the relationship between both parents and it is less stressful for the children. However, if you are unable to agree, you may need to seek the involvement of the FCFCOA.
Step 3: Seek Legal Advice
It is important to seek legal advice. A family law solicitor can help you understand your rights and obligations as a parent under the Family Law Act and can advise you on the best course of action. It is important to remember that a family law solicitor can assist you with both mediation as well as Court proceedings.
A family law solicitor can also assist you with negotiating a parenting plan or applying for parenting Orders in the FCFCOA.
Parenting plans and parenting Orders both outline the arrangements for the care of your children. A parenting plan is a document that is drafted usually by a solicitor after an agreement is reached. This document is not a legally enforceable agreement.
A parenting Order is a document that can arise by way of consent after an agreement is reached or by way of a decision made by the Court. The documents to apply for parenting Orders will usually be drafted by a solicitor representing a party to the matter. Parenting Orders are legally binding and enforceable on all parties to the matter.
Step 4: Attend Family Dispute Resolution
Before applying to the FCFCOA for parenting Orders, parents are required to attempt family dispute resolution (“FDR”) through mediation, unless there are exceptional circumstances (such as family violence). The goal of FDR is to help parents reach an agreement about the parenting arrangements without having to go to Court.
A Family Dispute Resolution Practitioner (“FDRP”) will help both parents discuss their concerns and work towards an agreement that is in the best interests of their children. This process is much quicker and cheaper than going to Court. If an agreement is reached, the FDRP and your solicitor can assist you with drafting a parenting plan or an application for Consent Orders for Orders to be made by the Court based on the agreement reached.
If mediation is unsuccessful, the FDRP will issue a section 60i certificate stating that mediation was attempted. This certificate is required before you can file Court documents in relation to a parenting matter with the FCFCOA, again, unless some particular exception applies.
Step 5: Apply to the Family Court for Parenting Orders
Once a section 60i certificate is obtained, or where an exception applies, parents can commence proceedings in the FCFCOA. The documents that must be filed include:
- An initiating application;
- a notice of child abuse, family violence, or risk;
- a Genuine Steps Certificate; and
- a Family Law affidavit detailing all relevant information concerning your matter.
Parents can apply for the following types of parenting Orders:
- Live With and Spend Time Orders: Where the children will live and how much time they will spend with each parent.
- Sole or Joint decision-making in relation to major long-term issues: Who will make important decisions about the children’s health, education, religion and welfare.
- Communication: How and when the children will communicate with the parent that they are not spending time with.
- Travel: Arrangements for parents who would like the option to travel interstate, intrastate and overseas with their children and how this will correlate in relation to the spend time with Orders.
The Court process can be lengthy, but once parenting Orders are made, they are legally enforceable. If a parent does not comply with Orders made, the other parent may apply to the Court to enforce the Orders, and severe consequences can arise for the parent who contravened the Orders.
Considerations for Special Circumstances
In some situations, there may be additional factors that need to be considered when making parenting arrangements. These include:
- Family Violence: If there are concerns about family violence, the safety of the children must be the priority. The Court may make Orders that restrict contact or change the living arrangements to protect the children from harm.
- Relocation: If one parent plans to move away, it can affect the existing parenting arrangements. The Court will consider how the move will affect the children’s relationship with both parents before making a decision.
- Children with special needs: If children have special needs, whether physical, intellectual, or emotional, the Court will take these into account when deciding on the best parenting arrangements.
Conclusion
Making parenting arrangements after separation can be a difficult and emotional process, but it is important to remember that the goal is to ensure the well-being and best interests of your children.
Parents should try to reach an agreement through direct negotiation or FDR, but if this is not possible, the FCFCOA can step in to make a decision based on the best interests of the children.
The FCFCOA provides clear guidelines and support for parents and children to help them navigate this challenging time. By taking the necessary steps, seeking legal advice, and prioritising the best interests of the children, parents can create a positive and supportive environment for their children, even after separation.
If you require guidance regarding a family law parenting matter, one of our experienced family law solicitors can offer their support and provide the advice you need.
This blog was written by Solicitor,
Maxcine Taylor
Maxcine practices in the areas of Family Law, Wills & Estate Planning,
and Deceased Estates
