Working out what is best for your children

Reaching agreement

Working out what is best for the children is a priority for all separating parents. Happily, most separating parents reach agreements with each other relatively easily in respect of the arrangements for the care of their children. Generally, these agreements are made informally without any legal procedures. Ideally, parents are able to informally review and re-arrange these agreements to reflect the changing needs of the children.

There are different process parents can use to discuss and reach good agreement about their children. Processes include mediation and family dispute resolution, and collaborative family law. Matthew Shepherd is a mediator and family dispute resolution practitioner and can help both parents reach good parenting agreements. Matthew is a trained collaborative practitioner and assist parents who choose to use collaborative family law.

If arrangements for the children are agreed, parents then need to decide how they wish to document the agreement. They can keep the agreement on an informal verbal basis. If so,  the effect of the Family Law Act is that both parents retain equal parental responsibility. Legally, neither has any greater or lesser responsibilities in the lives of their children than the other. Informal agreements however, are not legally binding or enforceable.

In some circumstances, parents may wish to document their agreements in legally binding and enforceable court orders, or parenting plans. This may avoid on-going disputes or discussions in respect of week-to-week arrangements for the children. Written parenting plans are not enforceable and do not prevent a parent making a subsequent application to a court. Consent orders are enforceable and are as final as if a Judge had decided the case. Orders may also protect children from being removed from the usual place of residence or from Australia.

What happens if parents cannot agree?

A minority of parents cannot reach agreements in respect of care of their children after separation. If so, one or both parents may wish to make an application to the court for parenting orders. Court proceedings damage the relationship between parents and create great stress for parents and children.  A court can make different orders to those sought by either parents. Neither parent, and certainly at least one, will be unhappy with the court decision creating difficulties with their willing implementation of the orders.  All court orders can do is apportion children’s time between parents – they cannot change the personality of attitudes of either parent.

In most cases, parents are obliged to attempt family dispute resolution (a special type of mediation) before applying to a court for parenting orders. This is to see if parents can reach their own agreement and avoid court. Matthew Shepherd is a family dispute resolution practitioner and can help separated parents to engage in effective dispute resolution about their childre.

There are three main types of parenting orders:

  • An order as to with whom the child shall live. The Order may provide that a child lives with one parent only, or with each parent under a shared residence arrangement.
  • An order about spending time with a child. This determines when and how often the child will see the non-resident parent. Orders in respect of living with or spending time with a parent merely determines where the child lives. They do not affect the responsibilities of either parent for other aspects of the child’s life: see Specific Issues Orders.
  • Specific Issues Orders determine the responsibilities from each parent for other aspects of the child’s care such as religion, education, names, discipline, medical treatment, extra curricular activities, and other issues which may be of specific concern to a parent or child. A Specific Issues Order may be made giving one parent sole parental responsibility in respect of the day-to-day or long term care of the child.

Who can apply for a Parenting Order?

Generally, parents seek parenting orders from a court. The Family Law Act however, allows any person who has a relationship with the child to seek parenting orders including relatives and friends.

What factors does a court consider in making Parenting Orders?

The child’s best interest is the paramount consideration when making Parenting Orders (Section 60CA).

Section 61DA creates a presumption that it is in the best interests of a child for both parents to have equal shared parental responsibility except if there are reasonable grounds to believe the child may be subjected to abuse or family violence. Equal shared parental responsibility does not relate to the amount of time a child spends with each parent – rather it relates to decision-making responsibilities including issues such as education, names, religion, medical treatment, extra curricular activities etc.

Section 65DAA provides that where equal shared parental responsibility applies, the Court must, firstly, consider whether the child spending equal time with each parent would be in its best interests and be reasonably practicable (taking into account the factors listed in Section 65DAA(5)).

If a Court determines that equal time is not in the child’s best interests or not reasonably practicable, it must consider whether the child spending substantial and significant time with each parent would be in its best interests and reasonably practicable. Substantial and significant time is defined as time that both falls on weekends and holidays, and also during school weeks, and is time which allows the parents to be involved in the child’s daily routine and events that are of particular significance. Arguably, a child spending a weekend commencing Friday afternoon and/or finishing Monday morning falls within this definition of significant and substantial time.

Some parents have misunderstood that the effect of the Act is that there is a presumption that children living with each parent is in their best interests or is a starting point. This misunderstanding is a simplification of the effect of the Act as applies to children. Parents (and Courts if asked) need to consider the particular circumstances of their children in determining what is in their best interests.

Court procedure

Except in special circumstances (such as child abuse, family violence or urgency) a parent cannot make an application to the Court for parenting orders without first having attempted family dispute resolution and obtaining a Section 60I Counsellor’s Certificate. See our page in respect of family dispute resolution for further details.

An application for interim or urgent parenting orders can be heard by the court within a few weeks. At an interim hearing, the court will generally continue the pre-existing status quo arrangements for the care of the child unless they pose some risk to the child.

Applications for final orders may take many months before they are heard by the court. Before the final hearing, the court will require that the parties participate in counselling and other forms of dispute resolution. As a result, the majority of parenting applications are resolved by agreement and do not proceed to a final hearing.

If a parenting application proceeds to a final hearing, it is common for a family report to be prepared by a court counsellor or child psychologist. The report will address any wishes of the child and may make recommendations as to what is in their best interests.

In some cases, a lawyer (called the child’s representative) may be appointed to represent the children before the court. The children, however, would not attend at the court hearing or give evidence.

Are Parenting Orders final?

Parenting orders are not final. Parents may seek to change parenting orders. Unless both parents agree, the court would need to be persuaded that there has been a change in the circumstances of the child since the earlier orders were made, and that the proposed change is in the children’s best interests.

Working out what is best for your children

Working out what is best for the children is a priority of most separating parents.

Happily, most separating parents reach agreement relatively easily in respect of arrangements for their children. These arrangements can be agreed on an informal, non-enforceable basis or reflected in consent orders.

In a small number of cases, parents are unable to reach agreement and it is necessary to commence court proceedings.