Parenting is hard, even when you are in an intact relationship. Parenting after separation, throws up some additional challenges, even when your separation has been amicable. An experienced Family Lawyer might be able to help you identify and navigate some of the issues you might face before they become serious. You can manage your separation without the assistance of a lawyer just as you can do your taxes without an accountant but it is often helpful to seek the assistance of specialised professionals. The reality of your engagement with a family lawyer when your separation is amicable might be limited to a single conference to help you identify common issues that arise when parenting separation, discussing whether to formalise your agreement in court orders or a parenting and/or some limited assistance with drafting the final agreement.

When your separation has been challenging for reasons of infidelity, constant arguments and antagonism, difficult dynamics with extended family and/or friends, financial stress or poor communication then the role of the Family Lawyer might be to assist you to negotiate with your ex partner in a child focus way that might not be possible on your own in the weeks and months following a difficult separation. It is the unenviable reality for parents who have recently separated that they are required not only to deal with the distress, anger and disappointment that often accompanies the end of an intimate relationship, but they also have to manage their children who often find separation difficult, whilst at the same time making serious parenting decisions relatively quickly after separation. The role of the family lawyer in this circumstances might be to assist in navigating the Family Law system, be a buffer between you and your ex-partner whilst tensions are high, reality test proposals for care arrangements with reference to the Family Law Act and to be the support that you need to negotiate and formalise a parenting arrangement that is in the best interests of your children. Your engagement with your lawyer in these circumstances might be more extensive but it is likely that professional support during this transitional time in your life will take some stress away from you, allowing you to be a more available parent and ultimately to result in a agreement that provides long term stability for you and your children.

When there are issues of substance abuse, domestic violence or there is a threat of harm to a child or to yourself then you should seek legal advice with priority. The Family Court is becoming better all the time at identifying and managing serious risk to children. The Family Law Act sets out that the primary concern for everyone involved in the Family Law system is to ensure the safety of a child. A family lawyer in these circumstances should be engaged as quickly as possible to assist you:

1. Vacate the family home safely;

2. Commence litigation (if necessary) to ensure that you and your children are safe;

3. Negotiate and advocate for you through any necessary litigation process.

Parenting arrangements cover arrangements for care of your children after separation including who the children live with and how you and your ex partner might make the big and small decisions for the children in the future.

Parenting arrangements can be a consequence of you and your ex partner sitting at kitchen table and reaching an agreement, can be the consequence of Family Dispute Resolution with a qualified mediator, or can be the consequence of contested court proceedings.

In Australian family law, ‘live with’ refers to the parent the child spends most their time with. ‘Spends time with’ refers to the parent who the child spend time with when they are not otherwise living with the other parent. Time spent with both parents, if safe and deemed to be in the best interests of the child should be significant and substantial. The social science is clear, that whenever it is safe, children’s best interests are met by having both parents in their lives.

Parental responsibility means the duties, powers, responsibilities and authority by which at law, parents have in relation to their children.

The legal system begins with the assumption that both parents will have shared parental responsibility for their children. Sole parental responsibility may be assigned to one parent in specific circumstances, considered on a case by case basis.

One way that parents can reduce an agreement to writing is by way of a Parenting Plan. A parenting plan is not lodged with court and neither parent needs to be legally represented to draft and sign a parenting plan. There is also no requirement for technical legal wording or forms. It can be drafted as simply as dot points on a piece of paper with the words “parenting plan” at the top of the page. The document should however be dated and signed by both parents. If you are interested as to what a parenting plan looks like then we encourage you to visit the Australian Government Family Relationships website at https://www.familyrelationships.gov.au/document/7236

Though a parenting plan is a written agreement between parents about the care of children it is not a legally enforceable agreement in the same way that Consent Orders are. It is however a statement of intention and it is our experience that courts have an expectation that parenting plans should be followed unless there is an agreement to make changes. The court can and often will, criticize parents who agree to parenting arrangements only to change them unilaterally at a later date.

The first step will be to attempt negotiation with the other party. If an agreement can’t be made at this stage, Family Dispute Resolution with a trained mediator can assist you to develop a plan considering the best interests of your child.

Consent Court Orders are made when your parenting agreement is reduced to writing in a form acceptable to the Family Court, filed in the court and then stamped or sealed by a Judicial Registrar. Court orders can also be made as a consequence of a contested parenting final hearing.

Final parenting orders will only be made when the court is satisfied that the orders are in the best interests of the child.

If one party breaches the parenting orders that have been sealed by the court, the other party can file a contravention application or an enforcement application. The penalties for breaching a court order, in circumstances where there is no reasonable excuse, may be costs orders (you are required to pay the other parties legal costs), make up time may be ordered, the court may vary the parenting orders or in extreme cases orders may be made for fines or imprisonment of the non complying parent.

Equal time means that the child spends 50% of their time living with one parent, and 50% living with the other.

Substantial and Significant time means that the child lives with one parent, however the other parent spends time with the child that includes weekends, holidays, daily activities and routines, and occasions that are of significance to the child, and occasions that are of significance to the parent.

There is no legally defined age for a child’s wishes to be taken into consideration, and the weight given to a child’s preferences will be dependent on their age, maturity, and other factors. The Family Court has jurisdiction to determine the care arrangements for a child until the child attains the age of 18 years.