The hardest part of a relationship break-up is protecting your children from being hurt. In a highly emotional time, the sudden upheaval of the split can have a terribly negative impact on everything from their mental health to their school routine and their relationship with one or both of their parents.
In fact, the Family Law Act 1975 specifically addresses this concern by making sure that any agreement or arrangement made between parents who have split up is done in the “best interests” of the children.
What does that mean, in the eyes of the law? It basically means that when parents separate, children have the right to:
- A meaningful relationship with both of their parents;
- protection from harm or the risk of harm;
- adequate and proper parenting that helps them to achieve their full potential;
- that the parents fulfil their duties and meet their responsibilities for the care, welfare and development of their children.
How are the best interests of children protected when parents separate?
There are a number of ways that parents who have separated make arrangements about raising their children to try and protect their best interests, as listed above. Each varies in terms of time, expense and the involvement of other parties.
Perhaps the most inexpensive and – some would say – the most effective way to get the best outcomes for the children is for the parents to come to their own agreement in a Parenting Plan.
Why the most effective? Because you and your former partner know the children best, and are likely best placed to know what they want and need now that their parents are no longer together.
Where the separation is relatively amicable, a parenting plan which sets out agreed arrangements for the children helps you avoid the expense and time of Court.
A parenting plan can cover both everyday matters as well as special arrangements, including:
- Where the children will mainly live.
- What the shared or equal care arrangements are so that the kids maintain a meaningful relationship with both parents as well as their extended family and friends.
- How the arrangements should change as the children grow older and their wants or needs change.
- The specific details of drop-offs and pick-ups, including time and location.
- What happens on special occasions, such as birthdays, Christmas, Easter, Mother’s Day and Father’s Day, as well as any other significant dates.
- Schooling arrangements, including payment of fees, and excursions.
- Religious observance.
- Decisions around health care.
- What happens if any domestic or international travel is required, including holidays.
How is the parenting plan formalised?
You and your estranged partner can make your own informal parenting plan but in order for it to be considered a more formal arrangement, in general it must be in writing, signed by both parents, and dated. Each parent should then have a copy of the signed document. But problems sometimes arise when the parents later disagree or wish to change the terms of the parenting plan.
If a disagreement or dispute about a child or children later ends up in Court, it’s a good idea to get proper legal advice before making a parenting plan because Courts take significant notice of them in making their orders. One of our experienced family lawyers can help guide you through the process and alert you to the fact that any new parenting plan makes any former arrangements redundant. They can also advise how to deal with the issue of your former partner wanting to change or amend the plan if things become less amicable between you at a later time.
What other options are there?
Perhaps you are worried that your former partner will not stick to the terms of the parenting plan and therefore you want a more formal, legally binding arrangement in place. In this situation you can apply to the Court for Consent Orders provided your former partner agrees and the Consent Orders are acceptable to the Court.
These work in a similar way to a parenting plan in that they are negotiated and agreed to by both parents but they are then ratified by the Court to become a legally binding, enforceable document. Consent Orders mean that if one parent breaches the terms of the agreement at a later time, there are more serious legal consequences than if they breach a parenting plan. Again, the advice and guidance of our experienced family lawyer should be sought in order to apply for Consent Orders.
If your relationship break-up is accompanied by violence and abuse which either threatens to or actually causes harm to your children, a better option is likely making an application to the Court for a parenting order. This will put the matter in the hands of the Court who will work out the best way to protect your children from any harm. But be warned, it can be a gruelling and emotionally draining process. You will definitely benefit from the experience of one of our family lawyers in this situation, not only to help you handle the Court appearances but because there will be other people involved such as psychologists, therapists, family report writers and possibly an independent children’s lawyer appointed on behalf of your child or children.
Seeking legal advice
Protecting the best interests of your children after a separation is not easy. Your ability to make calm, clear-sighted decisions will naturally be impaired because of the emotional strain you’re under, and yet this is when you need to make sensible, rational choices.
The help of people with long experience in making parenting arrangements after separation will prove invaluable. An expert family lawyer can be a sounding board and mentor in helping you through this difficult time and help you reach, as best as possible, the outcome you want for your children.
At Ivy Law Group we are committed to sharing useful information regularly. We understand for some people the importance of getting some context around your legal issue before engaging legal help!
Family Law Articles
Marital separation (including divorce) and de facto separation is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s own wishes?