When a relationship break down, reaching an agreement about the future care and living arrangements for your children will often be an emotional and difficult task. Obtaining specialised legal advice will ensure the best interest of your children is the paramount consideration.
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Separation is a stressful time for your children. Children may react in different ways to separation. How children react often depends on the child’s age, temperament and the level of cooperation or conflict between the parents.
However, if children are supported and encouraged to maintain a positive relationship with both parents, grandparents and other relatives, they are more likely to adapt to the changes.
Children from separated families can develop and flourish just as well as other children, especially if they continue to have supportive and caring relationships with parents and other significant people in their lives, like grandparents, and other relatives.
The Family Law Act 1975 requires parents to have the best interests of the child as the most important consideration.
The Family Law Act makes it clear that:
- both parents are responsible for the care and welfare of their children until the children reach 18, and
- there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
HOW DO WE DECIDE WHAT IS THE BEST INTERESTS OF THE CHILDREN?
In deciding what is in the best interest of a child, the Family Law Act requires two tiers of considerations – primary considerations and additional considerations:
Tier 1: The primary considerations are that there is:
- A benefit to children of having a meaningful relationship with both parents;
- A need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required to give greater weight to the consideration of the need to protect children from harm.
Tier 2: The additional considerations are that a court must have regard to:
- The children’s views and factors that might affect those views, such as the child’s maturity and level of understanding.
- The children’s relationship with each parent and other people, including grandparents and other relatives.
- The extent that parents have participated in making decisions the children, spent time with the children.
- The extent that parents have fulfilled their parent’s obligations to maintain the child;
- The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
- The practical difficulty and expense of a child spending time with and communicating with a parent.
- Each parent’s ability (and that of any other person) to provide for the child’s needs.
- The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
- The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
- The attitude of each parent to the child and to the responsibilities of parenthood.
- Any family violence involving the child or a member of the child’s family.
- Any family violence order that applies to the child or a member of the child’s family, if:
- the order is a final order, or
- the making of the order was contested by a person.
- Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
- Any other fact or circumstance that the Court thinks is relevant.
WHAT IS PARENTAL RESPONSIBILITY?
The Family Law Act states that we must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
- abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
- family violence.
In relation to a child, issues about the care, welfare and development of the child of a long-term nature includes (but is not limited to) issues about:
- the child’s education (both current and future); and
- the child’s religious and cultural upbringing; and
- the child’s health; and
- the child’s name; and
- changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
In the absence of any risk of harm and provided it is reasonably practicable we will then examine whether the parent will spend equal time or substantial and significant time with the child.
HOW MUCH TIME SHOULD BOTH PARENTS SPEND WITH THE CHILDREN?
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, we must:
- consider whether the child spending equal time with each of the parents would be in the best interests of the child and consider whether the child spending equal time with each of the parents is reasonably practicable; or
- consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
A child will be spending substantial and significant time with a parent only if:
- the time the child spends with the parent includes both: a. days that fall on weekends and holidays; and b. days that do not fall on weekends or holidays; and
- the time the child spends with the parent allows the parent to be involved in: a. the child’s daily routine; and b. occasions and events that are of particular significance to the child; and
- the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the case of KML v RAE  FMCAfam 528, the Court defined substantial and significant time and went onto say:
“for a parenting arrangement to involve substantial and significant time, one would normally expect to see the amount of mid week time, when taken with weekend, holiday and special occasion time, providing an opportunity for the child to be assisted by the parent with homework, to have the parent take the child to and from sports training and games in which the child is involved, to have the parent take the child to practice for, and to attend performances relating to, the child’s other extra curricular activities such as scouts or guides, music and dance, and to experience life as a member of the parent’s household with all the mundane reality that entails, including the parent cooking, washing and cleaning for the child, and the child, as may be age appropriate and in accordance with the reasonable wishes of the parent, assuming some household responsibilities in that parent’s household”
In determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, we must have regard to:
- how far apart the parents live from each other; and
- the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
- the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
- the impact that an arrangement of that kind would have on the child; and
- such other matters as the court considers relevant.
The above factors apply to all children who are under the age of 18 years.
HOW DO WE REACH AN AGREEMENT?
If you can reach an agreement there several ways to record the parenting agreement. They are as follows:
Informal Parenting Arrangements
An informal parenting arrangement occurs when both parties come to an informal agreement about the acre arrangements for the children. This typically occurs when there has been an amicable separation. This type of arrangement is usually discussed between the two parties verbally, without documenting the agreement.
The risks associated with an informal parenting plan is that while both parties might be amicable in the weeks and months following separation, this may not always be the case. Circumstances often change, for example, when either side enters a new relationship or one parent wishes to relocate. If a dispute does occur in the future and you do not have a legally binding agreement, there is a significant potential for relationship to deteriorate and this may result in a contested Court case.
A parenting plan is a written agreement that records the agreed care arrangements for the children.
Parents can create a parenting plan at any stage after their separation.
A Parenting Plan records the amount of time that parents spend with their children, where the children live, the allocation of parental responsibility, communication with the children, the process for resolving disputes about the living arrangements of the children in the future.
As a Parenting Plan not a legal document filed with the Family Court of Australia, Parenting Plans cannot be subject to any Application for contravention and are therefore not enforceable.
Parenting Plans are often useful for parents with for young children or for parents who know that circumstances are likely to change in the future.
An agreement can be legally formalised by an Application for Consent Orders which is filed with the Family Court of Australia. Court Orders, once made, are legally binding until the children are 18 years old. Orders can be subject to a Contravention Application, if one parent refuses to comply with the terms of the Order. If either parent fails to comply with their obligations under a parenting order, the Court has various powers which include:
- modifying the parenting order;
- ordering the offending party to:
- pay a fine;
- enter into a bond;
- serve a prison sentence, and/or
- pay the legal costs of the other party.
Court orders cannot be changed unless both parties agree or a significant change in circumstances has arisen that was not reasonably foreseeable at the time of making the Orders.
It is far easier and more cost-effective to resolve parenting disputes if parenting orders in place.
As both parents are obliged to comply with Court Orders once made and they are therefore suitable for parents who reach a long-term agreement for the care of their children or if parents want certainty for their children moving forward.
For further information on this topic, please visit our page: Family Law Guide to Proceedings
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