Australian law focuses on the rights of children to have an ongoing relationship with both parents so that separating from your partner or spouse doesn’t mean that you are separating from your child or children. The courts encourage separated parents to co-parent at arms length which means most people need to redefine their role in the family unit as a parent, not a partner.
To have equal parental responsibility means that both parents have equal say in the making of long term decisions that affect a child such as health, education and religion. Equal parental responsibility does not mean equal time. It is entirely possible, and most often the case, that despite a child living with one parent and spending time with the other parent, both parents will have equal say in the major long term decisions.
The law ensures that the best interests of the children are served first. When considering what is in the children’s best interests, the court has to consider facilitating a meaningful relationship between the children and both of their parents and also to protect the child from harm. Some other factors the court may consider are:
- The benefit to children from having a meaningful relationship with both parents.
- The need to protect children from physical and psychological harm.
- The views of the children.
- The nature of the relationship between the children and other family members.
- The involvement of each parent in the lives of their children.
- Whether either parent has failed in the duty to meet their parental obligations.
- The practical and financial difficulties for children to spend time with either parent.
- The capacity of either parent to meet the financial, emotional and intellectual needs of the children.
- The maturity, sex, lifestyle and background (including culture and traditions) of the child.
- Whether children are of Aboriginal or Torres Strait Islander descent and their right to enjoy that culture with other people who share that culture.
- The attitude of either parent towards their children or the responsibilities of parenthood.
Where do I start?
Firstly, get legal advice. Your lawyer will take you through all of the areas which need to be considered and document what you think is a fair approach to arrangements for your children. If your partner is agreeable, your lawyer can help you formalise the document without proceeding to costly court action for example, by way of consent orders or a parenting plan.
If your differences are unable to be resolved, then you may need to commence on the path to having parenting orders issued by the Family Court or Federal Circuit Court.
The Family Law Act 1975 requires parties to first participate in family dispute resolution before commencing proceedings. Family dispute resolution, or mediation, can take place at a community organisation such as the Family Relationships Centre or Interrelate, through Legal Aid NSW if you are eligible or through an accredited mediator.
Of course there are circumstances where mediation is not appropriate. The exceptions of having to participate in mediation will be discussed with you at your appointment.
Why use a lawyer?
As family lawyers experienced in this process we can advise you in regard to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain the best possible result for your children. And if it comes to court, we are deeply familiar with the court system and can use our experience to your advantage.
Contact us to discuss your specific situation in regard to your children with an experienced family lawyer.