Parenting post separation in Australia
Parenting children is not easy at the best of times and can often be even harder when parents separate. Where do the children live, how much time do they spend with each parent, where do they go to school and how are decisions made are often the issues that need to be resolved.
As family lawyers, we often hear terms such as “custody” or “visitation”. These are not in use in Australia and instead, children either “live with” or “spend time” with their parents or caregivers.
Parents do not have a ‘right’ to their child; instead, they have responsibilities and obligations. Only the child has rights and one of the most important rights of a child is the right to a meaningful relationship with each parent.
There are some common misconceptions about parenting arrangements. Many people believe that the Family Court favours mothers when it comes to the children spending more time with one parent over the other. It is important to know that that is not the case. Family law legislation in Australia is gender neutral. That is, the law does not discriminate between the father and the mother of the child and no assumptions are made about the roles of either parent. If a dispute is litigated rather than solved by agreement, the Court will decide who is the most suitable primary carer, regardless of gender, and neither is treated preferentially.
It is important to know that family law in Australia always considers the child’s best interests when making any determination. This means that regardless of what either parent desires in terms of parenting arrangements, or believes they are entitled to, the court will always determine the outcome in a way that protects the child or children, which keeps them safe and is in their best interests.
There is a difference between decision making for a child (parental responsibility) and time/live with arrangements. Generally, parents have equal shared responsibility for their children but this does not necessarily mean that the court will decide that parents will have equal time with the child or children. The Court’s ruling will always be determined by what it deems to be practical and in the child’s best interests. Depending on the age of the child, his or her wishes of the child may also be taken into consideration.
Most parenting arrangements are decided between the parents, sometimes with the assistance of a mediator or family lawyers, rather than by the Family Court.
Before making an application to the Family Court for a parenting order which is not by consent, parents who are in dispute are generally required to try and reach agreement by using alternative dispute resolution methods such as mediation. We say generally required because there are some exceptions which an experienced family lawyer can advise on.
Most, but not all, parenting matters are best kept out of the courts as the process can be lengthy, divisive and emotionally draining. We encourage our family law clients to invest time and effort in alternative negotiation pathways because they have proven to be effective for parents and their children.
If a parenting dispute is litigated, there will often be more than one interim Hearing and then a final Hearing, which is a Trial. Sometimes, a Trial can be years after the first application is filed, although there are many opportunities to settle a dispute. The Court will consider a number of different factors in making the decision and will always consider the child’s best interests in determining the outcome of a disagreement, such as (this is not an exhaustive list):
- The age and maturity level of the child or children and the relationship between the child and each parent. If the children are very young, the court will be cognisant of strong primary attachments and the need to safeguard those.
- The extent to which each parent has demonstrated commitment and ability in supporting the child.
- How well the parent can provide for the child’s needs.
- The child’s wishes. How do they feel about the proposed arrangements and do they have a preference? The child’s age is a factor.
- Practical considerations including financial matters, the proximity of home to the child’s school and disruptions to their current lifestyle.
- The effect that the changes could have on the child.
As mentioned earlier, parents have equal shared parenting responsibility for their children, but that does not mean that equal time with each parent is guaranteed.
We are also often asked whether one parent can be given sole parental responsibility for a child. Whilst the emphasis is always on shared parental responsibility, there are some matters where one parent will ask the Court to make an Order that decisions regarding the child are not made jointly. That very much depends on the particular facts and circumstances but abuse, violence or neglect are often features in such matters.
As mentioned earlier however, the vast majority of separating couples are able to work out their parenting arrangements without the need for court intervention.
Every family law scenario is unique and over the years, we have helped many families structure practical and equitable solutions that suit their circumstances.
If you have a question or concern about parenting arrangements or want advice on any other family law matter, West Family Lawyers can help. Please get in touch on 08 9380 9111 or book an appointment with one of our friendly, professional family lawyers in Perth through our website.
Please note that the above article is informative in nature and should not be taken as legal advice.