If you and your partner have just separated one of the biggest issues thatcan be of immediate concern is which parent the children are to live with and when can I see them.
There are a lot of misconceptions about a parents “entitlements” when it comes to these issues. Some people believe that in all cases it should be 50/50 while others think the old ‘alternate weekends and half school holidays’ is the way to go.
When I’m asked by a parent what are they “entitled to”, the short answer is that they are not entitled to anything. It is the children who are entitled, not the parent.
This is often a difficult concept to get your head around, but the focus of the Family Court is always on what is in the children’s best interests and in nearly all cases this requires that they spend time and have an ongoing relationship with both parents.
There is no definite answer as every family’s circumstances are different.
There is a long list of factors that need to take into account if you can’t agree on what is best for your children. Obviously the first one is to ensure that the children continue to have a meaningful relationship with each of you, subject to ensuring that they are kept safe if there are issues such as domestic violence or neglect for example.
Other considerations include:
- The nature and extent of the existing relationship between each parent and the children, including such things as the level of involvement in the children’s lives such as helping with homework, taking to sporting activities and those sorts of things.
- The children’s age and developmental needs. This is highly relevant to their ability to cope with living in two separate households and moving between each of them. This usually is mainly relevant for children up to about four or five years old.
- You and your former partner’s ability to communicate effectively about the children about organising the everyday mundane things such as completing homework, arranging the school uniforms, school projects, excursions and other special activities.
- Your respective ability to provide for your children’s needs including their emotional needs as well as being able to encourage the continuing relationship between them and the other parent. In other words, can a court have confidence that one parent won’t try to cut the children off and allow them to spend time and continue their relationship with their other parent.
- The effect on the children of any proposed changes in their current circumstances.
- Mainly for older children, any views they may express.
- The practical difficulties in putting any of these arrangements in place.
The starting point in most cases is that the court must initially consider whether or not equal time is in the children’s best interests. Contrary to common misconceptions this does not mean it automatically happens, it will only occur if it’s in the children’s best interests having regard to other factors.
An alternative to equal time is an arrangement where children live predominantly with one parent and spend time with the other parent, typically (for school-aged children) from after school on Friday to back-to-school the following Monday each alternate weekend, some overnight time during the week and one half school holiday periods.
Arrangements are usually also made for special occasions such as Mother’s Day/Father’s Day, birthdays, Christmas and so on.
There is no set formula to work all this out, the variations are almost endless and what may be appropriate for younger children may not be appropriate for children who are in primary school or older.
Also what’s appropriate can and does change over time.
As a lawyer, working all this out and balancing the different factors is a complex and often difficult task.
If you and your former partner can’t agree about what is to happen, it is not only a good idea but the law requires you to participate in a process to help you resolve these issues. This process is called “family dispute resolution”.
You will hear this term a lot. You are required to make a genuine attempt to resolve your issues before being able to ask the court to make an order.
It is always best to be able to say to your children if possible that “mum and dad were able to work out themselves what was best” rather than to keep fighting and have a judge decide.
If you do come to an agreement there are also various ways in which that agreement can be documented.