Going through a separation can be a complex and emotionally taxing time in a person’s life. In our previous articles, we discussed the steps that parties can take to minimise the stresses of financial separation by way of Binding Financial Agreements, and we also touched on why formalising property settlement is beneficial and how best to approach that. Unlike property settlement however, parties are unable to pre-determine their agreement on matters in relation to parenting in the event that they separate in the future. Parenting adds a layer of complexity which needs to be navigated carefully, particularly in the case of young and/or vulnerable children.
Whether parents are able to reach an agreement between themselves or require the assistance of the Court, every parenting decision in Australia is guided by one overriding principle being: what is in the best interests of the child, in accordance with the factors detailed in the Family Law Act 1975.
Many parents understandably assume that the Court will focus on what is fair for each parent, or that children should automatically spend equal time with both parents after separation. But this is not how the law determines appropriate parenting arrangements in Australia. The law requires the child's interests to be taken into account as the paramount consideration, and this is dictated by current family law legislation. Therefore, what a parent may consider as being in the best interest of their child may not be what the court ultimately decides is in the best interest of the child.
When determining what is in a child’s best interests, the Court is required to consider the child’s safety, wellbeing and developmental needs. This means that the Court must consider what parenting arrangements would best protect the child (and any person caring for the child) from family violence, abuse, neglect or harm. In assessing these matters the Court will generally consider any history of family violence that existed during the parties’ relationship as well as following their separation.
While, the Act allows the court to consider the child’s views, the weight given to those views largely depends on the maturity, age and circumstances of that child. This means that a child does not get to decide their own parenting arrangements. Parenting will remain a parent’s responsibility, and as a parent, the obligation is on you to promote fostering a positive relationship between the child and the other parent, as long as it is safe to do so.
The Court will also consider a child’s developmental, psychological, emotional and cultural needs, and the capacity of each parent to meet those needs, as well as the benefit to the child of maintaining relationships with their parents or other people with whom they have a close relationship. This generally means that the importance of the child in maintaining a relationship is considered in terms of balancing any potential exposure of the child to unacceptable risk or harm.
No single arrangement suits every family. The best outcome for one child may not be the best result for another. Ultimately, each case is determined on its own facts.
One of the most common misconceptions is that there is an entitlement for parents to have a 50/50 parenting arrangement. This is incorrect. Given the child’s needs and age, an equal time arrangement may not be in their best interest. This is particularly the case for very young children, who may require a ‘home base’ where they can feel comfortable and safe. It is important to reflect on what each party and the children can cope with given the pressures and stresses that they are also feeling as a result of the separation.
For some families, equal time may be appropriate. For others, an arrangement involving substantial and significant time, or more limited time, may better meet the child's needs.
Where parents can focus on their children's needs and negotiate, this will generally result in a more flexible, cost-effective and positive co-parenting relationship than what can be achieved through a litigious court process.
If an agreement can be reached, it can then be formalised by way of Consent Orders, providing certainty and enforceability to the situation.
If you are separating, obtaining legal advice can help you understand your rights and obligations. Contact Mellor Olsson via 8414 3400, or email [email protected] today.