Going through a separation can be a difficult time for you and your family. One of the most important matters you will need to consider is working out parenting arrangements for your children.
If you and your ex-partner can agree on parenting arrangements, you can make a parenting plan. It can be an agreement made between yourselves or it can be made at a mediation. It must be in writing, dated and signed by both parties. However, it is important to note that a parenting plan is not binding or enforceable. This means that if one party does not comply with the parenting plan, nothing can be done about it by the other party.
The best option if there is agreement, is to enter into consent orders which detail the parenting arrangements. If you need to sort out property matters as well, it can all be done in the same consent orders document. Consent orders are binding and enforceable by the court. Your lawyer can prepare the consent orders and then they are simply sent to the court to rubber stamp them and then they are binding. In this situation, you do not need to attend court.
If you cannot agree on parenting arrangements, the only option is to go to court. Before doing so, you and your partner must attempt family dispute resolution and obtain a certificate to file with your application, unless an exemption applies. Some situations where an exemption will apply include where the application is urgent or there are allegations of family violence or a risk of family violence.
If family dispute resolution is unsuccessful or you are exempt from attending family dispute resolution, you will need to file an Initiating Application, Notice of Risk and Affidavit with the court. Your partner must be served with the documents and then they are required to file responding documents. In this situation, a Judge will decide what the parenting arrangements should be.
The Family Law Act 1975 now requires the Court to apply a presumption that it is in the best interests of the child for both of the child’s parents to have “equal shared parental responsibility”. Parental responsibility refers to the duties, powers and responsibilities that parents usually have in relation to their children.
Equal shared parental responsibility effectively means that both parents are responsible for making decisions about the long term care, welfare and development of the children jointly. Long term decisions concern such issues as a child’s education, religion, treatment of longer term medical issues, surnames for the children and applying for passports and overseas travel.
There are exceptions to the presumption of equal shared parental responsibility, which include where there has been abuse of a child or family violence, or where it would not be in the best interests of the child for both parents to have equal shared parental responsibility.
Equal Time or Substantial and Significant Time
Where the Court finds that parents have equal shared parental responsibility for their child, the court must consider whether to make orders for equal time, or substantial and significant time.
“Equal time” means that the children spend an equal amount of time with each parent. This may mean that the children spend a week with each parent, or spend the same number of nights each week, fortnight or month with each parent.
“Substantial and significant time” means that the children spend time with each parent during school days, weekends, school holidays and to be involved in the children’s daily routine and for events that are of significance to the parent and the child.