Children

We’ve separated. Will I ever see my Children again?

childrenOf course you will. Only in very rare circumstances will the Court prohibit all contact with a parent. It’s important to realise that the circumstances in which you see your Children after separation are likely to be different than during your relationship.

We’ve separated. How do we resolve disagreements about time with the Children?

The good news is that many separating couples, with a little help from mediators or lawyers, parties soon reach agreement on issues surrounding the time the Children spend with both parents and related issues such education, health and travel. We can provide you with a range of options from informal settlement, parenting plans, mediation and as a last resort only- litigation.

What does “Best interests” of the Children mean?

The phrase ‘best interests’ of children is widely used but commonly misunderstood. In very general terms the ‘Best Interests’ of the Child is the main (or paramount) consideration of the Court when making orders about a Child. In plain terms, where separated parents ask for different orders from the Court (for example if Dad wishes to send the Child to public school and mum wishes to send the Child to private school) the main question the Court will ask is: “Is it in the Child’s best interest to go to Public School or private school?” Many parents assume that because their proposal has the Child’s best interests at heart that their proposal is automatically in the Child’s best interests. In the case of private vs public school quoted above Dad may assume that because he went to public school and had a successful career there is no need to send the Child to private school. Mum may say that as the Child is not academically gifted and will benefit from lower student/teacher ratios, the Child should go to private school. Both parents have the Child’s best interests at heart but that does not mean the Court will necessarily agree. The Court could conclude that the parties cannot really afford private school and it is not in the Child’s best interests that the parents limited financial resources be spent on private education. Alternatively, the Court could conclude that because of learning difficulties or because of better opportunities it is in the Child’s best interests to attend private school.

How does the Family Court decide what is in a Child’s Best Interests?

In legal terms this involves a very detailed and at times complex assessment of the law. A significant part of the Court’s decision will involve an assessment of section 60CC (for married couples) of the Family Law Act 1975. Among the issues to be considered are:

  • The benefit to the Child of having a meaningful relationship with both parents versus the need to protect the Child from physical or psychological harm from being subjected to or exposed to abuse, neglect or Family Violence.
  • The views of the child.
  • The nature of the child’s relationship with both parents and other persons in the Child’s life (including Grandparents).
  • The Extent to which both parents have (or have failed) to be involved in the Child’s life.
  • Whether each parent has fulfilled their obligations as a parent.
  • The likely effect on the Child of any changes in the Child’s circumstances
  • Practical issues re contact.
  • The capacity of both parents to provide for the Child’s emotional and intellectual needs.
  • Cultural issues.
  • Family Violence.

Am I automatically entitled to Shared Care?

No. Whilst it is fair to say that shared care orders have significantly increased from say 10 years ago there is no automatic right to shared care. The key issue is whether shared care is in the Child’s best interests. Factors that increase the likelihood of shared care being ordered include:

  • Whether shared care is ‘practicable’. Can separated parents demonstrate a “child focused” approach. In plain terms this means whether the parents can consistently put aside any personal issues between them so as to focus solely on the Child’s needs. Shared care can involve numerous pickups and drop offs, schooling, sporting activities, birthday parties, extra-curricular events and much more. To make shared care work both parents have to be seen to be willing and able to make it work.
  • Whether shared care is ‘practical’. This may involve issues such as the age of the Child and her/his needs, parents work commitments, financial costs, suitable accommodation, schools, child care and family support.
  • The absence of domestic violence.
  • Neither parent represents a physical, or psychological risk of harm to the Child.

What does ‘Equal Shared Parental Responsibility’ mean?

Equal Shared Parental Responsibility (“ESPR”) has nothing to do with the amount of time each parent spends with a Child. However, ESPR has everything to do with who makes the major decisions in a Child’s life. Some of these decisions include:

  • The Child’s name.
  • The Child’s religion (if relevant).
  • Who the Child lives with.
  • Education.
  • Medical issues.

If the presumption of ESPR applies then both parents must consult each other on these issues.

Do we have to go to court?

Absolutely not. Despite the emotional trauma of separation, many parents are able to agree on the future care and welfare of their children. Such fortunate parents deserve congratulation for their ability to put the interests of their children ahead of the hurt and emotional trauma that often inevitably follows a separation.
The team at Kavanagh Lawyers understand that many people, quite reasonably, are reluctant to engage in the legal process, particularly when they have successfully reached agreement. The legal process can be very expensive in both financial and emotional terms so it’s important to be cautious in your approach. In considering whether you need to do anything else you may wish to consider the following:

  • Is your agreement verbal or in writing?
  • Is your agreement binding in law?
  • If your former partner breaches the agreement, what happens?
  • Will communication between you and your former partner always be as good as it is now? What happens if you or your former partner marries or has a child with someone else?
  • Will you be able to agree on future schools, medical treatment and holidays (Christmas, School holidays) interstate and overseas travel?

These issues are mentioned – so as to emphasise that whilst many separating couples start out with the best of intentions and goodwill, over the 18 years of your child’s life (and yours) many things can change. Ultimately, only you can assess if you and your partner will be likely to reach agreement in the future, without a formal binding and enforceable agreement

Consent Orders and Parenting Plans

The good news is that at a relatively low cost (particularly relative to the cost of litigation) and quite quickly, Kavanagh Lawyers can formalise the agreement between you and your former partner so that it is binding and enforceable in law.

Unlike Consent Orders, Parenting Plans cannot be enforced by the Family Court. However, the hard work and goodwill parents often spend formulating a Parenting Plan can relatively easily be filed as a binding and enforceable Consent Order.

And even better, your Consent Orders can be filed and pronounced final at the Family Court without you ever having to attend the Court.

Family Dispute Resolution

Sadly, in many cases, despite the goodwill and best intentions of one or both parents, agreement cannot be reached about the future care and welfare of their children. This does not mean you inevitably end up in the Family Court. First you and your partner may be required to attend mediation with a Family Dispute Resolution Practitioner (FDRP).

Litigation

Sometimes, despite the best efforts of both parents (or because of the inaction or lack of co-operation of one parent) the only option is to file an application at the Family Court.
The Family Court will make Orders concerning your child/ children on such matters as:

  • Who has parental responsibility?
  • Where children go to school?
  • Medical issues.
  • Who the children live with?
  • The time the children spend with each parent.
  • Whether parents are permitted to relocate children interstate or overseas.

Just because you file an application at the Court, it does not automatically follow that you end up at trial. It’s important to remember that:

  • Only a relatively small percentage of matters proceed to trial.
  • The Family Court is focused on encouraging parents to mediate and settle matters informally.
  • The time from filing an application for final parenting orders to a decision after trial is likely to be a matter of years rather than months.
  • Trials are very expensive in terms of emotional and financial cost.

Next Steps

Call Kavanagh Lawyers on (08) 9218 8422 to speak to our lawyers.