Children: Separation and Divorce
Which kid is worse? (circa 1935)
Working out what is in the best interests of the kids
Much of family law in Australia is based on doing what is in the best interests of the children.
So what exactly does “the best interests of a child” mean? You might think it means one thing, while your former spouse might think it means something entirely different. As a lawyer, I see this this quite a bit!
To set your minds at ease and to guide you, the Family Law Act tells you exactly what this vague expression means.
Best interests of the child are primarily:
• The benefit to a child of having a meaningful relationship with both parents.
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
But additionally they are also:
• Any views expressed by the child. (Particularly as the child gets older eg. teens)
• The nature of the child’s relationship with parents and others, including grandparents.
• The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and to communicate with the child.
• The extent to which each parent has fulfilled his or her obligations to maintain the child.
• The effect on the child of any changes in the child’s circumstances.
• The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on a child of maintaining personal relationships and direct contact regularly with both parents.
• The capacity of each parent and others to provide for the child’s needs. (Poor mental health could be an issue here)
• The maturity, sex, lifestyle and background of the child and parents. (Immaturity, drug use etc. come in to play here)
• The child’s right to enjoy Aboriginal or Torres Strait Islander culture, where relevant.
• Each parent’s attitude to the child and to parenting.
• Any family violence involving the child or a member of the child’s family. (This is very important)
• Any family violence order. (Very important again)
• The desirability of making the order that is least likely to lead to further proceedings.
(Here the court tries to play fair with orders so it won’t see the two of you again. But that sometimes is a big misjudgement!)
• Any other fact or circumstance the court thinks relevant.
It’s a lot to take in. The most important or primary things to consider are ensuring your child has a meaningful relationship with both of you and is protected from any violent or potentially violent and/or abusive situation. You can probably guess that the law considers violence and abuse prevention is the most important thing to get right when it comes to your kids.
Separating parents usually understand most of these considerations and work out between themselves how their children will be looked after and where they will live without the courts becoming involved and imposing conditions. I can assure you if you can do this by putting aside your feelings about each other and not treating the kids as pawns you will be well on your way to a hassle free divorce.
Coming to an agreement
Now there are 3 different ways both of you can come to an agreement:
1 A Simple Informal Agreement
♦ Keep the agreement informal by simply coming to an understanding between the two of you as to what will work best for the kids. If you can do this there’s no need to put things in writing.
2 A Parenting Plan
♦ Make a formal parenting plan. This is an agreement in writing made, signed and dated by both parents. The plan deals with parental responsibility; who the child lives with; who they spend time and communicate with; what child support might be involved and other issues. Take a look at the parenting plan info to find out more.
The great thing about a parenting plan is that you don’t need to go to court to get this organised. But it’s important to remember that a parenting plan is not valid unless it was made voluntarily, without any threats, duress or coercion.
As parents you should normally only sign a parenting plan after seeking advice from a lawyer. I say this because a lawyer or experienced legal drafter (lawyer-drafters are much cheaper) has probably done a parenting plan many times prior to seeing you and they can often pinpoint things that may not occur to you to include in your plan.
For example, you might want special days like your birthday to always be a day when you can see your kids. This is good to have in the plan as it may not be your turn to have the kids when certain special days occur.
And always keep in mind those “best interests of the child” considerations when developing your plan.
3 Obtaining Consent Orders
♦ A more official way to sort out your parenting plans if you are both in agreement is to obtain consent orders approved by a court. A consent order is a written agreement that you both agree to that covers parenting arrangements for children. It can also include financial arrangements such as property division and any maintenance requirements that might be needed. Not following consent orders can have serious consequences and you may need to explain to a Judge why you breached the orders that you agreed to.
This is because consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. It is a document you would both prepare in consultation with your lawyers who will then come up with a single agreement you are both in favour of and send it to the court for approval. Normally you shouldn’t need to appear in court for these orders.
And once again, the court must be satisfied that the orders you ask for are in the best interest of the child.
Here’s a fact sheet on applying for consent (and other) orders from the court.
When you can’t seem to work things out
Sometimes despite giving it your best shot, it may be difficult to reach an agreement (or a fair one) about what will happen with the kids. You might also not want to negotiate with your ex if there could be the possibility of endless arguments or even worse, violence.
If you’re in this predicament you can apply for a parenting order.
But not so fast because there is a process you must go through before the court considers issuing orders about how the kids are to be parented.
The Family Law Act (aka ‘the law’), requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for a parenting order. It’s called a 60I certificate.
Family dispute resolution can be done through any accredited family dispute resolution practitioner or Family Relationship Centre.
How family dispute resolution works
Firstly, before any family dispute resolution (FDR) takes place, you are assessed to see if the service is right for your case. Usually, the two of you are interviewed separately to see if FDR is going to work.
The process is conducted by an accredited family dispute resolution practitioner who can help you both discuss any issues you have and how from that you might be able to work out an agreement with a parenting plan.
Finally, it is comforting to know that any FDR discussions you have are confidential and can’t be used in court against you.
So in summary
♦ If you try FDR and it doesn’t work out, or
♦ If your ex did not attend FDR due to the refusal or failure, or
♦ If one of you doesn’t attend FDR because the practitioner did not consider it would be appropriate to conduct FDR…
You still get your 60I certificate, which must accompany your application for a parenting order.
This is what the certificate looks like
There are several important exceptions where you won’t need a 60I certificate including:
♦ If the matter is urgent.
♦ If the Court is satisfied that there are reasonable grounds to believe that there has been child abuse and/or family violence by a party.
♦ There is a risk of family violence by one of you, and/or there is a risk of child abuse if there was a delay in applying to the Court.
♦ Where one of you can’t participate effectively in family dispute resolution for reasons of incapacity, illness or simply living too far away from a dispute resolution practitioner.
♦ If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly breached the order has betrayed in a way that shows a serious disregard for their obligations under that order.
What does the court consider when issuing parental orders?
Let’s start by looking at some big misconceptions about how the court makes decisions.
◊ Firstly, women don’t always get the kids. In fact the latest court statistics show that judges made orders for children to spend a majority of their time with their mother in only 62% of cases.
◊ Secondly, the person who initially leaves the relationship and the children may still be able to care for the children in the future. There are all sorts of reasons why people might have to leave initially, and the court will assess the circumstances behind anyone leaving and not just make simple and biased decisions.
◊ Thirdly, blaming the relationship breakdown on one person and then saying that they shouldn’t get the kids means very little to the court. The court doesn’t want to know about the ‘ins and outs’ of your personal relationship. It’s whether a parent’s behaviour affects the children is much more relevant.
◊ Finally, neither of you are necessarily entitled to 50:50 equal time. The court will look at what is in the child’s best interests, and issues of practicality.
In essence, a parenting order is a court order that states who has what responsibilities for the children. These orders cover areas like who the kids live with and who (and when) they spend time with. In the parenting orders there may be reference to where and how the kids are schooled and other things of relevance to their care, like their special needs or medical treatment.
For more detailed information on parenting orders take a look at this great brochure from the Victorian Legal Aid HERE.
Am I entitled to child support?
Regardless of whether or not you’re married, you’re entitled to support from your former partner if you jointly care for a child. We have a great section on child support HERE. The Department of Human Services also has information about child support HERE.
Did you know?
The court may not grant you a divorce if you both haven’t made proper arrangements in all the circumstances for the care, welfare and development of your children who are under 18.
If the court doubts that these arrangements have been made the proceedings in your divorce application may be delayed (adjourned) until the court receives a report from a family consultant regarding those arrangements.
So get those details right for your under 18’s.
Oh… and for those 30 something ‘children’ you still might have at home, for heaven’s sake show them the door and set them free!
For free legal and information advice check out our resources section HERE.