Arrangements for your Children

When your children were born, both you and your partner assumed equal shared parental responsibility for them by operation of the law.

What this means is that both you and your partner have the same rights to make decisions about the long-term interests of your children, for example, where they live, where they go to school, what religion they are, and whether they have medical treatment.

All that is fine while you and your partner remain happily living together making mutual decisions, but when you separate, often it’s difficult to be on the same page as your ex-partner about these sorts of matters.

If you have this problem, our starting point is to try to help you reach a negotiated settlement with your ex-partner. There are various ways that we go about this, including where necessary through mediation. Sometimes, however, despite best efforts, agreement can simply not be reached between you and your ex-partner about what to do with the children.

It is important to understand that until a judge of a family court says otherwise, you and your ex-partner have the same parental rights. This means, quite literally, that you can pick up the children and move away tomorrow. You are not breaking the law, and the police will not (and indeed, cannot) do anything about it. However, similarly, your ex-partner can then collect the children the next day and move them back again. The same comments about your ex-partner not breaking the law applies.

It is also important to understand that you can make a parenting decision about your children on any basis that you feel appropriate. You might want to move with the children interstate because the weather is better. You are allowed to make that decision if you wish, although of course parents properly advised inevitably attempt to make decisions about parenting matters on the basis of what is in the children’s best interests.

If you get into a situation where you and your ex-partner just can’t agree on how to exercise your joint power of parental responsibility, then the only alternative is to have a judge of a family court make some or all of these parenting decisions for you.

If a judge is called upon to make such a decision, then they have to make their decision in accordance with the requirements of the Family Law Act. The overriding thing that a judge has to take into account is that their decision must be made in the best interests of the children. They can’t make decisions on the basis of the weather interstate, as I said above that you can.

The most important thing for a judge to take into account if making a parenting decision about your children is their safety. If there is a background in your relationship of family violence, alcohol abuse, drug abuse, sexual abuse, or any of those sorts of matters, that will be the first thing that a judge looks at in terms of working out what to do with your children – protecting them from those risks of harm.

If a judge is satisfied that your children are safe from such risks, then the next most important thing is to make an arrangement that will facilitate the children having a meaningful relationship with both you and your ex-partner. Whilst that sounds logical, in practice it can be complicated. How it is done also changes over time, often dependent upon the age of the children.

Broadly speaking, when children are young, a court tries to maintain their relationship with both parents by ordering that the children live mainly with one parent, and spend occasional time with the other parent. When the children are young, the time that they spend with the other parent will be frequent, but fairly short. Overnight contact often is not ordered until children are about three years of age. As the children get older, the time that they spend with the other parent is less frequent, but usually longer in duration. This is because when children get a little bit older they are developmentally more capable of spending longer periods of time away from their primary carer without being negatively affected.

Accordingly, and this is a question which I am often asked, there is very little likelihood of a court imposing a “50/50” arrangement with young children. As a general rule, you would not expect a court to impose such an arrangement where children are less than somewhere in the vicinity of 8 to 10 years of age.

Indeed, “50/50” arrangements, whilst they will be considered by the court, are not in any way a standard outcome. Many factors often are contra-indicators of such an arrangement, for example, the geographical distance between the parents, and their lack of capacity to communicate in an effective manner.

There are many other factors in the Family Law Act that a court must take into account in working out what is in the best interests of children. One of those factors is the wishes of the children. In a general sense, when children are young, whilst the law says their wishes still have to be taken into account, they are not given a lot of weight.
However, as children get older, their wishes assume more importance in the overall weighing up of the competing factors by the judge.

Whilst there are no absolute rules, you can expect that by the time a child reaches 13 or 14 years of age, if they are expressing a strong wish about parenting arrangements, that wish will assume very significant importance to a judge determining what to do. This is different to saying “what the child wants, the child gets” – it is important to understand that the children’s wishes are just one factor for a judge to take into account.

Working out what to do with parenting arrangements is not a science. Every child is different, every family’s dynamics are different. I can talk to you at length about your and your children’s needs, the factors that the court takes into account, and give you clear advice about your situation, and if worst comes to worst, what a court would do if that is the path that you have to go down.

Mediation

The Family Law Act says that if you cannot reach an agreement with your ex-partner about parenting matters, before you can go to court to have a judge make a decision, you are meant to attend a process of compulsory mediation with a family dispute resolution practitioner (I can provide you with a list of these in your area).

If you attend mediation, and still can’t reach agreement, then the mediator will give you a certificate that is necessary to show the court that you have complied with the mediation requirements.

An important word about urgent matters, family violence, and mediation.

It is very important that you understand that mediation is not compulsory in all circumstances. For example, if there is a background of family violence, other safety issues, or if the matter is urgent, (for example, if your ex-partner has taken the children) then you can be exempted from the requirement to attend mediation. I have lost count of the number of people who have come to see me with really urgent parenting problems who assumed that they had to go through a lengthy mediation process – this is quite incorrect.

Where there are urgent matters involving children, the court is able to act extremely quickly, even immediately.
If you have an urgent parenting matter, it is of vital importance that you get proper legal advice about what you need to do to protect you and your children. There are many complex procedural, tactical, and legal issues that have to be considered and that you need to understand.

Where your matter is urgent, I act immediately for you – if this means dropping everything and rescheduling work, or seeing you out of hours, then that is what I do.

If you need assistance contact me at andreww@andrewwarren.com.au or call one of my offices for a no obligation discussion and for expert legal advice.