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Parenting Arrangements are very time-sensitive and a delay of months, weeks or even days can impact on the outcome so speak to one of our experienced Family Lawyers immediately if you have any concerns.
Parenting Orders may be sought immediately after separation, though keep in mind that unless you are exempt, there is an obligation for parents to attempt to participate in Mediation prior to bringing an Application to the Court.
Parenting Arrangements After Separation
After separation, parents often need to come to some arrangements between them as to:
- Who the child or children are to live with,
- How much time their child or children will spend with each parent and other people such as grandparents,
- The allocation of parental responsibility (i.e. who is to make major long-term decisions for the child or children),
- How a child or children will communicate with a parent they do not live with, or other people,
- Arrangements for special days and holidays, and
- Arrangements for a child or children to travel with one parent.
How are Parenting Arrangements Worked Out After Separation?
Parenting Arrangements may develop naturally and easily from the time of separation, or with the assistance of Family Lawyers, a Mediator or by an Application to the Court for Parenting Orders.
The Paramount Principle: The Best Interests of the Child
When considering Parenting Arrangements and making Parenting Orders, the Court must regard the best interests of the child(ren) as the paramount consideration.
How to Determine a Child’s Best Interests
The Court determines what is in a child’s best interest by taking into consideration the factors listed at section 60CC of the Family Law Act and adopts a ‘two tiered’ approach requiring the Court to have regard to both the ‘primary’ and ‘additional’ considerations.
The ‘primary considerations’ are:
- The benefit of the child of having a meaningful relationship with both parents, and
- The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.
The need to protect the children from family violence, abuse, neglect or harm outweighs the benefit to the children of having a meaningful relationship with both parents.
Some of the Additional Considerations include:
- The views of the child,
- The nature of the relationship of the child with each parent and other persons (including grandparents),
- The likely effect on the child of a change in circumstances including separation from either parent or any other child or relative (including grandparents) with whom they have been living,
- The practical difficulty and expense of a child spending time and communicating with a parent, and
- The capacity of each parent to provide for the needs of the child (including emotional and intellectual needs).
How Does a Court Ascertain a Child’s Best Interests?
Each party may provide evidence in the form of an Affidavit in relation to the best interests of the child. In order to get a complete picture of the child’s best interests, if there is a high degree of conflict and/or allegations of risk, an Independent Children’s Lawyer may be appointed by the Court. Their role is to represent the best interests of the child(ren).
The Court may also make Orders for the preparation of an Expert Report to assist the Judge in determining what Orders are in the best interests of the child(ren).
The Presumption of Equal Shared Parental Responsibility
Under the Family Law Act, there is a presumption that a child’s parents have equal shared parental responsibility for him/her however this presumption may be rebutted where there has been family violence or abuse of the child, or if the Court determines that it would otherwise not be in the bests interests of the child for his/her parents to share parental responsibility.
‘Parental responsibility’ means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children
“Equal shared parental responsibility” means that the parents are to be equally responsible for making decisions which affect the long-term care, welfare and development of the child, such as which school he/or she attends, which religion is followed or whether the child undergoes a particular medical procedure.
Equal Time vs Substantial and Significant Time
If the Court considers that an Order for equal shared parental responsibility is in the best interests of the child(ren), it must consider whether or not it is in the child(ren)’s best interests to spend equal time or significant and substantial time with each parent. If the Court makes Orders for one parent to have sole parental responsibility then there is no such requirement.
Whilst “equal time” is self-explanatory, “significant and substantial” time is defined as days which fall on weekdays, weekends, holidays and days which are of special significance to the parent and child. The intention is to allow the parent to be involved in the child’s daily routine and vice versa.
The Court must be satisfied that it is both reasonably practicable and, in the children’s best interests to spend either equal, or significant and substantial time.
When considering whether the proposed time arrangement is “reasonably practicable” the Court is concerned with the reality of the situation for the parents and the children and requires a practical consideration of whether the proposed Parenting Order is feasible. Such consideration takes into account the distance between the parents’ households, their ability to facilitate such an arrangement and how well the parents are able to communicate with one another.
Reaching an Agreement
Sometimes parents are able to reach an agreement about parenting arrangements which should be documented in practical terms. Our experienced Family Lawyers can help you to document the agreement and will discuss with you the best format for your particular agreement.
If parents are unable to reach agreement, the parties must first attempt Mediation (also known as Family Dispute Resolution) before the Court will accept an Application for Court orders about parenting arrangements.
This requirement has been put in place so that parties make every effort to reach agreement before going to Court and is compulsory except in limited circumstances (including urgency, risk of harm to a child, or presence of family violence).
How We Charge
We offer flexible fee structures and payment arrangements for our clients including:
- A once-off fixed fee initial consultation to get you started in Family Law,
- Hourly rates or negotiated fixed fees for each stage of your matter.
Our Family Lawyers will discuss our fees and charges with you and will provide an estimate of the fees and charges likely to arise in your matter.