Where do you start? What if you can agree? What if you cannot agree? Who can help?
The breakdown of a relationship is an emotional and stressful time. For many, it’s not simply that the marriage or relationship has ended that can bring uncertainty. It is the change that is brought to the lives of each family member and the impact on children of the relationship that can be unsettling and worrying.
Understanding the answers to some simple questions can often help relieve uncertainty and provide you with direction.
We’ve put together some commonly asked questions to provide you with a simple guide to navigating care arrangements for your children following separation.
- Are you and your former partner living under one roof?
- You do not need a formal agreement if you are currently residing under the same roof.
- Starting with an interim agreement which you can vary as time progresses and as your children’s new routines evolve, may offer you a starting point with flexibility that you can utilise as the basis to work toward a longer-term arrangement.
- You are now living separately; how often do the kids spend with each parent?
- Your agreement can be tailored to meet your needs and the best interests of your children. Consider what is manageable for you and what arrangement is going to best suit the interests of your children and their relationship with both parents. There is no one fit answer. Families each have unique circumstances; what works for one family may not work for another.
- Do I have a say in decisions to be made about my children?
- Both parents have the right to share in decisions to be made about their children. Under the Family Law Act 1975 (Cth), parental responsibility is defined as “All the duties, powers, responsibilities, and authority which, by law, parents have in relation to children.” Whilst capable of variation, the law presumes that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for their child. This means both parents share responsibility and should consult each other about important decisions affecting their children, such as the choice of the school they attend or medical treatment they require.
- Often one parent may take the lead and fail to adequately consult the other in relation to such decisions. It is important for both parents to understand that in the absence of a Court Order stating otherwise, these decisions are to be shared decisions.
- We have agreed to a parenting arrangement; can this be documented?
- Yes, this can be documented by way of a Parenting Plan or Consent Orders filed with the Court.
- Consent Orders may be appropriate if compliance is a concern.
- A signed Parenting Plan can be relied upon as evidence of the terms of your agreement, but it is not enforceable.
- Orders of the Court are enforceable.
- Exploring each of these options with the assistance of a lawyer or mediator will assist you in determining which option is best suited to your circumstances.
- We need some help reaching an agreement.
- A Family Dispute Resolution (FDR) Provider can assist you in reaching an agreement. FDR is essentially a mediation process tailored to separating families, with a neutral mediator discussing the issues in dispute and options available to you and your children.
- It is often helpful to seek legal advice before you attend a joint FDR session to ensure that you attend FDR with a full understanding of your options and rights and with a well thought out proposal to assist you in achieving agreement.
- We cannot reach an agreement, what now?
- If negotiations between you and your former partner stall, it’s time to seek legal advice on the options available to you.
- It can often be beneficial for lawyers to assist you with your negotiations to avoid inflaming the co-parenting relationship.
- There are options available to parties to avoid litigation.
- If an agreement is unable to be reached, an application may be made to the Federal Circuit and Family Court of Australia.