Family Law Q&As

How do I work out what is best for my children now that we have separated?

The answer to this question will largely depend upon the client’s and the children’s individual circumstances. We advise clients that it is much better if Parents can decide between themselves about what is best for their children, moving forward, without the need to revert to court proceedings.

Children will do better, socially, behaviourally and academically, if they are supported by their parents following separation and if their parents are able to effectively co-operate and communicate about their children’s needs and arrangements following separation.

Children who are exposed to high conflict between parents following separation are more likely to suffer psychological distress, behavioural problems and mental health issues on both a short-term and long-term basis. Children find their parents’ separation a very difficult time and having parents involved in Court proceedings will only exacerbate the conflict.

We refer many clients to various private and publicly- funded Mediation Service providers and Therapeutic Services to assist clients to navigate with their children through their post-separation pathway.

However, as much as we try to assist the early resolution of a dispute, there are matters that cannot always be resolved between the parties themselves without Court intervention.

When dealing with Parenting matters a Judge of the Family Court or the Federal Circuit Court is asked to make a decision about where children should live and the amount of time children should spend with their parents, amongst many other parenting matters.

The Judges are required to make a decision about what they consider is in the best interests of each of the children involved, based on the applicable Law and the evidence available to them.

When making those decisions, the best interests of the children are the paramount consideration. A Judge will consider Children’s rights. Children have rights and parents have responsibilities. As part of the primary considerations, Children have a right to:

• know and be cared for by both parents;
• have both parents involved in their parenting and upbringing; and
• to be protected from any form of harm or abuse, including both physical and psychological harm and the need to be protected from any form of harm or abuse is given greater priority.

A 2006 Full Court Case of Goode and Goode sets out a multi-stepped legal framework for Judicial officers to follow when determining parenting matters. The first step, is that there is a presumption that both parents are equally responsible for the decisions which affect the children’s long-term care, welfare and development. This presumption can be rebutted if there are allegations of family violence and/or abuse.

If the presumption exists, the Court must then have regard to, whether to make an order for Equal Time, if it is practicable and reasonable to do so in the circumstances having regards to the children’s best interests.

If the Judge does not make an order for Equal Time, the then have to consider an order for ‘substantial and significant time’ with that parent. If the Judge does not make an order for substantial and significant time, then the Judge will consider what is best for the children based on the circumstances of the case.

When following the legislative pathway, a Judge has to consider a number of Secondary Considerations pursuant to Section 60CC (3) of the Family Law Act. At our first appointment with clients, we will usually explore the secondary considerations by obtaining a history in relation to the following matters:

• What are their proposals for their children now that they have separated?
• How can they physically accommodate and care for their children? (living arrangements and care arrangements?)
• Do their children have specific or special needs or health concerns? Does that need to be communicated with their other parent? Can the parents communicate?
• What are their proposals for their children’s time with the other parent and how will this be accommodated?
• What do they consider is best for their children?
• Are they aware of what the other parent’s proposal are for the above matters?
• What were the care arrangements before the parents separated?
• What have been the care arrangements since the parents separated?
• What is the nature of the children’s relationships
  • With each parent? Within their sibling group? with anyone of any significance in their lives?
• How are the children coping with the existing arrangements?
• Is it desirable for the children to keep the current arrangements, or is it desirable to change them?
• What are the views of the child or children?
• What is the age and maturity of each of the children?
• What are each of the parent’s capacity to provide for the children?
  • Emotionally?
  • Physically?
  • Financially?
• Are there any issues that affect a parent’s capacity to care for the children, including;
  • Does either parent have a Criminal record or previous involvement from a State child welfare authority? Police involvement?
  • Addition to Drugs or Alcohol?
  • Does a parent or carer have any Mental Health issues? If so, are they dealing with them appropriately and can they manage with the children?
• Are there any allegations of child abuse? (Of a physical, sexual or psychological nature?)
• Are there any allegations of Family Violence?
• Are there any AVOs in place? Any AVOs between the parents and the children, the parents with each other, or any other members of the family?
• Are their cultural or religious issues relevant to the child or children, being a need to maintain a connection to their culture or religion?
• What is the nature of the relationship between the parents and their ability to co-parent and communicate with each other?
• Are there any practical difficulties associated with facilitating any changeovers between the parents?; and
• Any other fact or circumstance that is raised or relevant to the children.

Whilst this seems like a very long list there are probably many more matters that we have not listed as the issues with vary from case to case, depending upon what parents can agree to.

We do urge Parents to obtain advice early on so they can try and come to an agreement with their ex-partner as soon as possible. An early resolution of a Parenting Matter will more likely lead to Happier Parents and in turn, Happier Children.

Do you have concerns about what is best for your children after your separation? To make an appointment with one of our Family Law Team please contact 8525 2700 or click here to make an appointment.