Q:        How are parenting arrangements made after separation?

A:        The Law does not recognise “parents’ rights”.   Post-separation parenting arrangements depend on a number of things including:

  1. Age of the children
  1. The distance between the two parents’ households.
  1. The level of cooperation and/or communication between the parents.
  1. Whether there are any serious issues including drug or alcohol abuse, family violence and/or mental health problems.

Parenting arrangements, regardless of how they are made by consent or Court Order must focus on the children’s rights to:

  1. Maintaining a meaningful relationship with both parents.
  1. Being protected from abuse or family violence which includes physical, mental or psychological abuse.

Where there are no issues of family violence or abuse there is a presumption of equal shared parental responsibility.  This means that both parents are equally responsible for making the significant decision about their children including:

  1. Where they live.
  1. What school they attend.
  1. What religious or cultural identity they are raised in.
  1. Providing consent for major medical procedures.

Of course, the parent who has the children in their care at any given time has the day-to-day responsibility for the children and is able to make decisions about the children without the other parent’s consent in respect of anything which is not long-term in nature.

Where equal parental responsibility exists, a consideration of equal time is required but may not be practical because of:

  1. A parent’s work arrangements.
  1. Distance between the two households.
  1. Poor parental communication or parental conflict.
  1. The children’s age or stage of development.

If equal time arrangement are not appropriate then there is a consideration of significant and substantial time.  This means having regular time including some holiday time, special occasions such as Christmas as well as some time during the school week.  Most parenting arrangements tend to be significant and substantial time.

If however, significant and substantial time is not appropriate then other arrangements will need to be considered and often this is because of the distance between the households or some unusual circumstances such as work commitments or children’s particular special needs.

Where the presumption of equal parental responsibility does not exist because for example there are issues such as:

  • Family violence.
  • Drugs and/or alcohol abuse.
  • Extremely poor parental communication.

The Court may Order sole parental responsibility to one parent.  This can be in respect of all parenting issues or in respect of a specific issue such as education, for example.  Where a parent has sole parental responsibility there is not a requirement for a consideration of equal time or any particular other time arrangements.  The arrangements made (presumably by the Court) will be unique to the circumstances of the case and could include:

  • Supervised time;
  • Very limited time; or
  • No time.

These tend to be the most extreme of cases and are generally the exception not the rule.

Q:        We were never married does that make a difference?

A:        Regardless of the relationship status or even whether the child’s parents were involved in a relationship, all parenting matters are governed by the same principles and legislation.

Q:        What if I want to move away do I have to let the other parent know?

A:        In short, yes. Unless there are serious issues about your safety or the safety of your children you are required to obtain the permission of the other parent before you change your children’s area of residence.  If the other parent does not agree to your move you should seek legal advice before moving away.  Relocation is a complicated issue and acting unilaterally may have serious consequences for your own parenting arrangements in the long-term.

Q:        What should I do if the other parent refuses to return my child/children or goes missing with my children?

A:        You need to act quickly.  The longer someone remains missing with a child, the harder it can be to find them.  Although the police will tend not get involved you should still seek their assistance.  Sometimes a phone call from a police officer is enough to make the other parent see sense and return the children.  Otherwise, you will need to seek urgent legal advice about your options including seeking a Recovery Order through the Family Law Courts.

Q:        What should I do if the other parent takes my child overseas and refuses to return them?

A:        Depending on the country the children have been taken to there are international agreements in place which Australia is a party to including the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) as well as other agreements Australia has entered into with individual countries which may be implemented to seek the return of your children.  Further information is available on the Australian Attorney General’s website.

Q:        I’m going to Court to seek time with my children but have issues with drugs and/or alcohol or there is a history of mental illness or family violence. What should I do?

A:        Be honest, address the issues before considering filing a Court Application.  Seek referrals for appropriate drug/alcohol counselling or anger management therapy.  Your GP is often a good starting point as are organisations such as Interrelate and Relationships Australia.If you are already involved in Family Court parenting proceedings be open and honest about your circumstances, parents are not meant to be perfect.  The Family Law Courts are required to act in the best interests of your children. It is fair to say an insightful parent who is aware of their issues and is prepared to address them will receive a far superior outcome to one who dismisses or denies their issues exit.

Q:        My ex refuses to let me see my children?

A:        Sometimes there are genuine reasons a parent refuses to allow the other parent to see their children post-separation particularly if there has been a traumatic separation.  If there are issues of drug and/or alcohol abuse, family violence, and/or mental health problems it may be that the other parent is taking what they see as a proactive stance in ensuring the children are safe.  This may or may not be reasonable when looking at the issues objectively.If there are issues, take steps to address them and listen to the other parent’s concerns before criticising them.  If you believe there are no genuine reasons the other parent is refusing you time with your children invite them to mediation with an Accredited Family Dispute Resolution Practitioner. There are community organisations including Interrelate and Relationships Australia which may assist you. We can also refer you to very effective private mediators.

Many parenting disputes settle at mediation.  If the mediator has deemed the mediation inappropriate or the mediation failed you should seek the advice of an Accredited Specialist Family Lawyer before filing an Application for Parenting Orders in the Family Law Courts.

Q:        I’m planning to take my children on an overseas holiday and the other parent is refusing to allow me to obtain a passport for them, what can I do?

A:        Before making financial commitments to travel speak to a Family Lawyer.  Applications for passports and permission to travel overseas can be made in the Family Law Courts but this process does take time.  Don’t contact a Family Lawyer a week before your booked departure date seeking advice about obtaining passports as it may well be too late.  Plan ahead.  It is often a good idea when negotiating Parenting Orders to consider also making orders about the children’s passports

Q:        What age can my children decide where they want to live?

A:        Until a child turns 18 they are their parents’ responsibility.  Many people think when a child turns 12 they can decide where they live.  This is wrong.  You wouldn’t allow a 12 year old to quit school, drive a car or begin drinking.  Deciding where they live is no different.If your child is expressing a strong desire to live with you speak to the other parent about it first.  This is a decision for both parents exercising their parental responsibility equally to decide together.  Acting unilaterally will not only cause unnecessary conflict but will undermine both parents’ capacity to parent their child effectively.

If your children are expressing legitimate strong views about their living arrangements you should seek advice from an Accredited Family Law Specialist before making any unilateral long-term decisions about your children’s living arrangements.

Q:        My children aren’t safe when they are with the other parent, what can I do?

A:        Unfortunately, family violence (psychical and psychological) as well as drug and alcohol abuse and mental health problems are all too common problems in our community.  In making parenting arrangements the safety of your children is the paramount consideration. However, a parent should not restrict another parent’s time with the children unreasonably. There is a risk that in doing so could have long-term consequences for the parent refusing time between the children and the other parent.If you have genuine concerns about the welfare and safety of your children seek advice from an Accredited Family Law Specialist prior to unilaterally withdrawing time with the other parent, particularly if there are Orders already in place.

Q:        How do I get equal time with my children?

A:        In short, equal time arrangements or equal shared care only works well when there is a high level of cooperation and good communication between both parents.  This is because an equal time arrangement requires both parents to work together for it to work.  Where there is high conflict or poor communication it is unlikely that the Family Law Courts will order equal time arrangements.  These arrangements are more likely to come about through negotiation and cooperation between separated parents who are able to get along and not through litigation in the Family Law Courts.

Q:        Our current parenting arrangements just don’t work, what should I do?

A:        First, you should not take the law into your own hands.  If the arrangements aren’t working try talking to the other parent. If this is not possible invite them to mediation with an Accredited Family Dispute Resolution Practitioner.Organisations such as Unifam, Relationships Australia, Family Relationship Centres or a privately accredited mediators can assist.

Unless there are issues of personal safety or mediation is deemed by the mediator to be in appropriate, mediation is compulsory. You cannot file an Application in the Family Law Courts for Parenting Orders without first obtaining a Certificate known as a Section 60i Certificate from a mediator unless you have been granted an exemption by the Family Law Courts. Only after mediation has been attempted or an exemption has been granted can you file an application for parenting Orders in the Family Law Courts (other than in exceptional circumstances such as seeking Recovery Orders).

Q:        Why do the children always end up with the mother?

A:        This is incorrect.  Each case must be assessed on its own merits and there may be a variety of reasons that one parent may be favoured over the other as the parent with whom the children live, these may include:

  1. Issues relating to the children’s age and developmental stage.
  1. The practicalities of each parent’s proposal.
  1. The parents’ work arrangements.
  1. The distance between the two
  1. The level of cooperation and co-parenting between the parents.
  1. Issues of family violence, mental health or drug and/or alcohol abuse.
  1. Links to Aboriginality or cultural identity.