What about the Children? Parenting after Separation

11 January 2011

What has to be decided?

When parents separate, there are many decisions to be made about arrangements for children. Parents need to decide who the children will live with and when they will spend time with each parent. Parents also need to establish new ways of communicating with each other about matters such as their children’s health, schooling and activities.

Obtaining Court Orders if you and the other parent agree

If parents can agree about arrangements for children, they can obtain Court Orders by consent, formalising those arrangements. This can be done without having to go to Court. The Court Orders are then binding on both parents. It is not compulsory to have Court Orders. We will talk to you about the advantages and disadvantages of obtaining Court Orders in your situation.

What if you and the other parent can’t agree?

While many parents can agree on arrangements for children, unfortunately this is not always possible, even with help from counsellors, lawyers and other resources. Where parents cannot agree, the Family Court can be asked to decide arrangements such as:

Who will make decisions about children. This is referred to as ‘parental responsibility’.
Whether children should live mainly with one parent or whether they should alternate their time between parents.
If children are living mainly with one parent, when they should spend time with the other parent.
Arrangements for the children to spend time with each parent on special occasions.
When children should communicate with each parent, by telephone or other means.
Whether children should spend speci.c times with other people, such as grandparents.
How and when parents should communicate about children.
Specific issues, such as which school a child should attend or whether they should receive a specific type of medical treatment.

The types of Orders that the Court can make are set out in section 64B of the Family Law Act (the Act) which is attached.

How does the Court make decisions?

When making decisions about children, the Court has to consider a list of objects and principles which are set out in the Act. Those include the need for children to have a meaningful relationship with both parents and the need for children to be protected from harm. The objects and principles are detailed at section 60B of the Act which is attached.

The Court’s overriding focus has to be on the children’s best interests. This is set out at section 60CA of the Act which is attached.

When determining what is in a child’s best interests, the Court has to consider a range of factors. Those factors are divided into ‘primary considerations’ and additional considerations and are detailed at section 60CC of the Act. A copy of section 60CC is attached.

Equal shared parental responsibility - making decisions about the children

The Court operates on the presumption that both parents should have equal shared parental responsibility for children. This means that parents need to make decisions together about long term issues affecting their children, such as schooling, health and religion.

However, in some circumstances, particularly if there has been family violence or abuse, the Court will .nd that the presumption of equal shared parental responsibility does not apply. Section 61DA of the Act sets out the presumption about shared parental responsibility and the exceptions to that presumption. A copy of section 61DA is attached.

Children’s living arrangements

An order for equal shared parental responsibility does not mean that children will spend equal time living with each parent. Living arrangements are a separate issue to be determined.

However, if an order for equal shared parental responsibility is made, the Court has to consider whether it would be appropriate for children to spend equal time living with each parent. If the children are to live mainly with one parent, the Court looks at whether the children should spend substantial and signi.cant time with the other parent. This is set out at section 65DAA of the Act which is attached.

It is important to note that this does not mean that the Court must order that children live with each parent for an equal amount of time or spend substantial and signi.cant time with the other parent. It simply requires the Court to consider those arrangements as options.

Minimising the impact on children

You will obviously be concerned about the impact the separation will have on your children. The following basic steps can help minimise that impact:

Do not show children any Family Court documents or discuss the detail of Court proceedings with them.
Be careful not to criticise the other parent in front of the children and do not expect children to ‘take sides’.
Avoid using children to pass on messages. Try and communicate with the other parent by phone or email instead. Some people find it helpful to use a ‘communication book’. This is usually an exercise book in a sealed envelope that accompanies the children at changeovers. Parents can raise issues and provide information to each other by writing entries in the book.

We have a number of resources that we can provide to you with further information and suggestions about parenting after separation. We can also refer you to counsellors and community organisations if you wish to obtain further assistance and information.