Separation and Children
Many separated couples are able to agree about future parenting arrangements for their children and do not require the assistance of lawyers, except with documenting their agreement. This is no doubt the best outcome for separated parents and their children and one that is encouraged by our Family Law team.
However, we know that it is not always possible to reach an agreement on child custody & children’s matters and we can assist in advising on how the Act will apply in such instances.
Below are some main points to consider.
Children and the law
The basic principles set out in the Family Law Act state that:
- children have the right to be properly cared for and protected from harm, and
- parents have the responsibility to care for their children.
When determining care arrangements, the Family Law Act states that the best interests of the child must be the primary consideration.
Children’s matters are not limited to disputes between parents and often include grandparents and other people closely concerned with the care of a child.
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Compulsory family dispute resolution
Except in limited circumstances you will be required to attend Family Dispute Resolution (FDR) and make a genuine attempt to resolve your parenting dispute prior to issuing a court application. The FDR process involves parties attending mediation to try to reach an agreement about the future arrangements for their children, child custody and any other matters in dispute.
If the matter does not resolve at this stage further negotiation through lawyers may be necessary and in some cases it will be necessary to make an application to the court.
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Will the child’s wishes be considered?
Each child is an individual and as they grow older the court will pay more attention to their personalities and opinions. For example, when deciding the child custody of where a child should live a court is more likely to consider the opinion of child in the mid- to late-teens.
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Decisions parents will have to make
- Where the children will live (one place or two?)
- What religious celebrations and worship the children will take part in
- What type of education and schools the children should attend
- What attendance at sporting and extra-curricular activities is appropriate
- How to fit in with the parents’ work arrangements
- When and where the children should spend time with others (grandparents and other relatives)
- What the handover arrangements will be
- How to make arrangements for the children during holidays (school holidays and long weekends)
- What arrangements should be in place for birthdays, special and family celebrations
- Whether the children have any special needs, including medical requirements
- What arrangements are reasonable for spending time with siblings and step siblings, and
- How to bring flexibility into the terms of the agreement to provide for future events
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Cannot reach an agreement on arrangements for the children
What happens if we cannot reach an agreement on the arrangements for the children?
- If an agreement cannot made by agreement, then Court proceedings may be issued.
- Before you can start proceedings, you must get a certificate indicating that you have undertaken ‘appropriate mediation’ or ‘primary dispute resolution’. This is compulsory in children’s matters. It involves going to a Family Relationships Centre or an Accredited Family Dispute Resolution Practitioner and attempting to resolve the issues. Hopefully this brings about agreement and you can then take a shortcut in the Court process by having the agreement made legally binding through Court Consent orders.
- However, you can still get the certificate even if you have not resolved anything at the session. Also, if one party fails to attend the session, the certificate can still be issued stating this fact.
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Changing my child's name
What if I want to change my child’s name?
A child’s name cannot usually be changed unless both parties agree to a change of name. If you wish to apply for a name change you must either seek the consent of the other party or apply to the Court. The primary consideration will be whether it is in the child’s best interests to have his or her name changed. Based on past Court decisions, factors to consider include;
- The short and long-term effects of the change in the child’s surname;
- The short term and long term advantages of the child’s name staying the same ;
- Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with day to day care;
- Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
- The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
- The effect of frequent or random changes of name.
This service is not currently offered in our Victoria offices
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What is relevant in determining the child’s best interests?
According to the Family Law Act, the best interests of children are met by:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interest of the child
- protecting children from physical and psychological harm and being subjected to abuse
- ensuring that children receive full parenting to help them achieve their full potential, and
- ensuring that parents fulfil their duty to meet their responsibilities concerning the care, welfare and development of their children.
These are all great concepts and few people would argue against them. Unfortunately, each is open to interpretation, which is why many disputes over children end up in court.
Under the Family Law Act, the Court takes into consideration a wide range of factors in determining what is in a child’s best interests, including:
- the views expressed by the child
- the child’s maturity and level of understanding
- the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
- the practical difficulty and expense of the child spending time with, and communicating with, each parent,
- the maturity, sex, lifestyle and background – including cultural traditions of the child and of the child’s parents, and
- any other factors or circumstances that the Court thinks are relevant.
In other words, the Court may take virtually anything into consideration in determining what is in the best interest of each child.
Although the Court may “take into consideration the views of the child”, children are not allowed to give evidence in court (nor, indeed, to watch events unfolding in the Court). A Judge has the power to interview a child but this is very rare; children’s wishes are usually determined by experts appointed by the Court
Attempting to influence the children
The courts take a very dim view of a parent who tries to influence children against the other parent. Sometimes a Judge will order that parents do not discuss any issues or belittle each other in the presence of the children.
You may hold genuine views about the behaviour of the other parent of your children, but trying to influence the kids to your cause is unlikely to help and will possibly have the opposite effect. So, focus on what is relevant – the children’s interests. Getting this resolved will help everyone to move on.
In many cases, child experts are appointed by the Court to prepare a report on proposed arrangements for the children. Their report is provided to the Court to assist in its consideration of the orders it will make.
The Court will provide the expert with ‘terms of reference’ for the report, which might require:
- interviewing the child in the presence of the parents (first with one and then the other)
- interviewing the parents separately, and
- interviewing the child without either parent being present (depending on the age of the child).
The experts will usually assess each of the relevant factors set out in the Family Law Act (particularly in relation to the child’s wishes and the likely impact of each of the parents’ proposals on the welfare of the child) and report what they consider to be in the best interests of the child or children.
If a case proceeds to Trial, the expert’s report will form part of the evidence to be considered by the Judge and the expert can be cross-examined on the contents of the report. An expert’s opinions carry considerable weight and it is often difficult to persuade a court that the expert’s recommendations should not be followed.
When it’s resolved – complying with court orders
Whether you and your ex agree on the arrangements for the kids, or whether the Court orders have come about through the court process, once orders have been made you must comply with them – unless there are exceptional circumstances.
Exceptional circumstances might exist where you have a genuine fear that complying with orders (for example, by delivering the children to the other parent) would be placing the children in danger. If the particular danger had not been contemplated in previous court proceedings, you might be justified in withholding the children and disobeying an order. However, if your concern is that the other parent is simply an unsuitable person, or you simply don’t like the Terms of orders that have been made, you are not justified in deciding that the children should not go.