1. What do I first do when I separate in relation to the children?
Whilst this largely depends on the circumstances of your separation, it is important to consult with a lawyer as soon as possible after your separation, or even if you are simply contemplating separating from your partner, given the numerous and complex issues that can arise.
Arrangements that may have been accepted by both parents and seemed relatively straightforward during the course of the relationship can become highly contentious following separation, particularly in relation to major issues such as who will have primary care of the children and whether parental responsibility will be exercised solely or jointly.
Other issues that will likely require consideration include where the children will live, decisions in relation to their health, religion and education, and how the costs of their upbringing will be borne by the parents.
In circumstances where family violence has occurred, it may be appropriate to obtain an Intervention Order as soon as possible. Children can also be listed as protected persons pursuant to the Intervention Order.
2. What is family dispute resolution regarding children and what are the avenues available?
Family dispute resolution (often abbreviated as FDR) is a process which attempts to facilitate and guide parties who are in conflict about children’s arrangements, with the assistance of an accredited FDR practitioner.
They are often conducted as mediations / conferences in which the practitioner attempts to assist the parties to come to an agreement, but does not give legal advice.
Except for limited circumstances, such as where child abuse or family violence has occurred, FDR is compulsory for parents who wish to issue proceedings into a court.
FDR can be conducted thought a variety of organisations, both public and private. Relationships Australia and Victoria Legal Aid are some of the most popular public organisations that offer FDR services.
3. How much will mediation cost?
This depends on the provider of the service.
Public organisations generally have no costs, or only nominal costs, associated with service.
As Pearsons Lawyers offers a free “no obligations” first interview, we are able to suggest a mediation service which best suits your needs and fits in with your timing.
4. Who gets the children when I separate?
That is a complex issue which is dictated by numerous factors, which require fleshing out in an interview with an experienced Family Lawyer.
Previous arrangements can change, particularly in contested litigation where important evidence comes before a court which has the potential to overturn established residence arrangements. Factors such as the ability to care for a child, religion, and extended family arrangements are all weighed up.
Previously the law dictated that the courts should generally try to maintain the “status quo” in relation to parenting arrangements, however subject to major reforms to the law in 2006 and the seminal case Goode v Goode, this is no longer the approach.
5. How old do the children have to be to decide where they want to live or how much time they want to spend with a parent?
When making orders in relation to children, the children’s’ best interests are the paramount consideration for a court, and those bests interests are determined through the courts’ consideration of a range of factors.
One of those factors are any views expressed by the children and any factors (such as their maturity level or level of understanding) that the court may think are relevant to the weight of the children’s views.
Generally it is the case that the older the children are, the more weight that the court places on their views, however, they do not get to decide themselves.
6. What is a usual order if the children are living with one parent and the other parent is spending time with them?
Orders vary case by case and there are generally no “standard orders” that are applied to cases, as each set of orders are tailored for the circumstances of their specific case.
That said, it is relatively common that an order will provide, on a final basis, for the children to live with one parent and to spend alternate weekends with the other, with additional time for that parent during the “off week” and for special occasions and holidays.
7. Am I able to have 50/50 care of the children with my spouse?
It is possible, however, it is quite rare that a court makes these orders in the course of litigation.
50/50 care is much easier to obtain by consent rather than by forcing the court to decide.
8. What if my spouse won’t give me any time with the children?
In those circumstances one would issue into court, seeking orders to compel your former partner to enable you to spend time with your children.
The law provides that the best interests of the children are met by ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children.
9. Can I take the children with me when I separate?
That depends on the circumstances of your separation and your geographic relocation.
Where, for example, you are fleeing a violent household and relocate with the children to a different suburb a court will likely allow that, however, in circumstances of interstate or overseas relocation the court may well issue a “recovery order” compelling the children to be returned to their original location until the matter is decided by a court.
10. Do I have to let my spouse see the children?
The law provides that the best interests of the children are met by ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children.
That said, in determining the best interests of the children greater emphasis is placed on the need to protect children from physical or psychological harm than their need to have a meaningful relationship with both parents, and so in those circumstances it may be that your former partner can only see the children on limited terms, if at all.
11. Do the children have to attend the same school when we separate and who will pay the fees?
They do not, and it is not uncommon for entire cases to be litigated solely on the matter of where the children attend school – these are colloquially referred to as “schooling cases”.
The payment of the school fees usually falls under child support, which is a different area of law to that of parenting arrangements.
Child support arrangements can be resolved privately, by way of a Binding Child Support Agreement, or through the Child Support Agency by way of an assessment.
12. Can I take the children interstate or overseas on a holiday?
If there are court proceedings on foot or parenting orders in place, it is a criminal offence to take a child outside of Australia, unless the orders expressly provide the authority to do so, or written consent is given by the other parent.
No such restriction applies in relation to interstate travel, however, sometimes orders may be obtained restricting a parent’s ability to take children interstate.
13. Can I communicate with the children’s teachers, school and doctors?
In most cases you will be able to do so, and orders are usually made expressly providing with both parents the authority to do so, in order to avoid any ambiguity or confusion.
You are still both the parents of the child and are entitled to be involved in their education.
14. Do I have to keep paying private health insurance for the children?
Whilst the law provides an obligation for parents to maintain and financially support children, this would not be a compulsory requirement.
However, such an obligation could be created pursuant to a Binding Child Support Agreement.
15. Can I reach an agreement with my spouse in relation to the arrangements regarding the care of the children or do I have to get a Court Order?
Whilst private arrangements can be made between parents, they are not enforceable by a court.
In order to ensure consistency and accountability it is suggested that parents either apply to the court for Consent Orders, or in circumstances where the parents are not agreeable, it may be necessary to issue proceedings.
Consent Orders can be prepared quickly and cost effectively and do not require an attendance in Court. Our team of lawyers can assist by preparing this for you.
16. What is a parenting plan?
A parenting plan is an agreement made in writing between parents which deals with issues such as where the children are to live, the amount of time they spend with the other parents, maintenance of the children, and any other aspect of the care, welfare or development of the children.
A parenting plan is not a legally enforceable agreement, and is different from a court order, however, when making a parenting order a court must have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the children.
17. Can I change a children’s orders and what do I have to do?
Final parenting orders can be later changed by the parents by filing an Application for Consent Orders, and this is true irrespective of whether the previous orders were reached by consent or were made by a judge in the course of proceedings.
However, in circumstances where a parents tries to litigate again in order to change orders, a court will not allow a case to be re-opened unless either of these criteria are met:
a) That there has been a substantial change in circumstances since the case was first heard; or
b) That when the case was first heard, there was important information that had not been disclosed to the court.
Our experienced team of Family Lawyers can give you advice as to whether or not your case can be reopened.
