Parenting Arrangements After Divorce
Coming to an agreement about post-separation parenting arrangements can be the most difficult issue for separating parents. At Salerno Law our Family Lawyers will support you with legal advice and solutions to finalise arrangements that are best for your children and workable for separating parents. Under the Family Law Act, the best interest of the child is the paramount consideration.
There are many considerations for separating parents when it comes to organising parenting arrangements. Tensions and conflict can arise quickly and this can lead to prolonged periods of time with no arrangements or ones that just don’t suit the children or the parents. Getting legal advice and discussing parenting arrangements early on in your separation or before separation can decrease conflict, costs and provide your children with stability during separation and beyond.
What about my rights as a parent?
The Family Law Act sets out that parents have responsibilities rather than rights. This can be a surprise to many parents. Essentially parents can agree to any arrangements they like regarding post-separation parenting, however if you cannot agree and you need the assistance of the court, you will be bound by the provisions under the Act.
When you are given legal advice by a lawyer or meet with a Mediator, Family Counsellor or Consultant they must tell you and encourage you to make decisions that are in the best interest of your child. The best interest of your child is decided by considering many factors that are set out in s 60CC of the Act. At Salerno Law our Family Lawyers can explain these considerations to you and prepare your evidence. Both the Act and social science research sets out that it is in a child’s best interest to have a meaningful relationship with both parents and have safety in their lives. Children should be protected from harm, abuse, neglect, and family violence.
Both parents are presumed to have equal parental responsibility for their child however parents can agree to varying types of responsibility or the court can allocate responsibility. The court can remove one parent’s responsibility and give the other parent all of the responsibility for the child. Parental responsibility includes all of the duties and authorities at law that parents have in relation to their children.
What is the difference between a Parenting Plan and a Parenting Order?
- Parents are encouraged to make their own arrangements for the parenting of their children after separation. Court is a place of last resort. In fact, most matters are settled without the court making the parenting arrangements for your children;
- Parenting plans are written agreements made by the parents that are signed and dated. The agreement must have been made without threat, duress, or coercion of either parent. Parenting plans deal with a range of issues including parental responsibility and the care and communication arrangements for your children. Parenting plans can be changed by agreement of the parties. Parenting plans are not enforceable by either parent or the court;
- Parenting Orders are agreed to by the parents or decided by the court, they are made as Orders of the court and they are enforceable by either party. They can be changed by agreement of both parties or by the court. Parenting Orders are considered final and having them reconsidered by the court can be difficult as you will need to meet certain criteria and convince the court that your matter should be heard again.
What if my current arrangements are not working?
At Salerno Law we often meet with clients who have parenting arrangements that are not functional for the children or parents. Often the children’s needs can outgrow the current parenting orders or arrangements, but one parent is reluctant to make changes.
What about my child’s views?
Children are not able to directly inform the court of their views about their care arrangements, however the court does consider a child’s views when deciding what orders are in the best interest of your child. The court will consider factors such as the child’s maturity and their level of understanding when deciding what weight will be given to any views that are expressed by a child.
Evidence of your child’s view may be put before the court by either party, an Independent Children’s Lawyer if assigned to your matter, or a through a Family Report. Each parent may have their own perception of their child’s view about parenting arrangements. Parents should be mindful that children may tell each parent a view that they know suits that parent to decrease conflict and please the parent.
By Lindsay Nicholson
DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information.
Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.