How do I look after the best interests of my children after separation?
Separation or divorce can be a stressful time. There’s much emotional and physical upheaval as you change your life and try to move on. It can be an uncertain and confusing time for your kids.
Australian family law requires parents to act in the best interests of their children, especially when there’s separation or divorce. As part of this, they must demonstrate that they’ve made appropriate arrangements for their kids.
Parents can also enter into parenting plans or apply for parenting orders to try and smooth the way for the kids’ adjustment to a different life.
What are the basic principles of parenting arrangements?
If you’re separating from your spouse or partner, Australian family law sets out some basic principles for negotiating parenting arrangements:
- Both parents should equally share parenting responsibilities
- Parents should try and resolve parenting issues without going to court
- Both parents are responsible for their children until the children are 18 years old
These principles set out a starting point only. There may be lots of reasons why some (or all) of them won’t apply to your situation. For example, if there has been family violence, it may not be in the best interests of the children to spend significant time with one of the parents.
What are equal parenting responsibilities?
The term equal parenting responsibilities>means that both parents are be equally responsible for decisions about the care, education and welfare of their children, unless there are good reasons against this. For more information, see our page on parental responsibility.
This equal responsibility is an important recognition of fathers’ rights. It also recognises children’s rights to have a meaningful relationship with both parents (unless there are good reasons against this).
How do I make parenting arrangements without going to court?
Making arrangements for your children involves a careful process of assessing every aspect of their lives and reaching agreement about how to manage. It’s not just about where they will live and with whom. Arrangements, which can be put into parenting plans, can cover a vast range of issues, including:
- Where they will go to school
- In which activities they will participate
- Any care requirements outside of school
- Medical treatment
- Who will have financial responsibility, and for what
- How you’ll communicate with the other parent
For older children, you’ll also need to take their wishes into account.
Making these arrangements can cause an already tense situation to become more difficult. That’s why it’s a good idea to get legal help to assist you with the process. If both you and your ex-partner have lawyers, often arrangements can be made more efficiently.
Family dispute resolution can also help you reach an agreement without going to court. We’ll discuss this option with you.
If you can’t reach an agreement, you may need to ask a court to make parenting orders.
We can help you through the process of making parenting and access arrangements for your children.
What is a parenting plan?
A parenting plan is a written agreement that you enter into with the other parent. It covers as many issues as you’ve been able to agree upon for the care of, and responsibility for, your children.
Is a parenting plan legally enforceable?
The parenting plan itself isn’t legally enforceable, although it does serve as a record of your agreement. This is useful if you need evidence to prove the agreement to a court.
If the other parent breaches the plan, your only option may be to sue them for breach of contract. This would take the issue outside of family law and into a general court process. The judge or magistrate is unlikely to have expertise in cases concerning children. Any decisions made may not be in the best interests of anyone, especially the kids.
How do I make sure my parenting plan is legally enforceable?
Many parents who make parenting plans choose to register them with the Federal Circuit Court of Australia (FCC) or the Family Court of Australia (FCA). This is a process known as consent orders. It means that both parties agree to ask the court to make orders in the terms outlined in the parenting plan.
The consent orders make the parenting plan legally enforceable, meaning that if one parent breaches the agreement, the other parent can apply to court for enforcement. The case remains within the family law jurisdiction. For more information, see our page on consent orders for children.