How to navigate parenting arrangements after separation

When a couple with a child or children separate, issues can arise from the breakdown of the marriage or de facto relationship that are likely to include what is to happen regarding the children.

By Anna Carr, Head of Family Law at Australian Family Lawyers in Perth.

These issues include the ‘live with’ and ‘spend time with’ parenting agreements, parenting arrangements and financial issues.

Parenting agreements and parenting arrangements after separation

Stepparent helping their child cross a street rights in Australia

When parents separate, one of the most important things to consider is the parenting agreements and parenting arrangements after separation, such as who will the children live with, when and where. 

There is a great degree of flexibility about these child arrangements. Sometimes the children live primarily with one parent and spend time with the other parent. The two most common arrangements are:

  • the children living with one parent and spending time with the other each alternate weekend and half of the school holidays; or
  •  the children living with each parent on a ‘week about’ basis. 

How to define parenting arrangements after separation

In practical terms, it is essential to look at the children and their routine before separation and any changes since separation. These factors include:

  • the ages of the children;
  • whether they attend daycare or school; and 
  • extracurricular activities. 

Younger children who have not yet commenced attending kindergarten or full-time pre-primary school generally benefit from:

  • living with one parent (the primary caregiver); and 
  • spending time with the other parent with whom they are not living frequently and for shorter periods.

Each case will depend on its own facts, and the parenting arrangements should be based on the children’s best interests.

Typically older, more mature children, for example over 10 years old, may have their wishes taken into account.

Anecdotally, where parents who have separated do so amicably and put in place suitable workable arrangements for their children’s care and financial support, those children tend to have greater coping skills and resilience than children who have been exposed to parental conflict or alienation. 

Parenting disputes and mediation

Where there is a parenting dispute regarding which parent the children should live with or spend time with, there can be significant delays of:

  • At least two to six months for an interim hearing. 
  • In some cases, it can take at least one to two years or even take longer to have a trial for final orders regarding the arrangements for the children. 
  • In each case, it usually takes an additional three months for the Court to hand down a decision after a hearing. 

In light of Court delays, and where parents cannot agree on the children’s arrangements, we urge parents to attend private family dispute resolution or mediation to try to reach an agreement. Family dispute resolution generally is without the parties’ lawyers being present, and mediation can occur with or without the parties’ lawyers also attending.

We suggest each party obtain independent legal advice before family dispute resolution or mediation to make the most of the opportunity to discuss their matter and reach an agreement.

Formalising a parenting agreement

Father carrying baby as part of parenting agreements and arrangements

Where the parties reach an agreement, they can formalise their parenting agreement by completing and filing a Form 11 Application for Consent Orders, regarding children’s issues only, or children and financial issues. 

The parties can also reach agreement and complete and file a Form 11 Application for Consent Orders regarding financial issues only and choose not to seek orders about parenting. 

How do restraining orders affect parenting arrangements?

Restraining orders, known by different names depending on which Australian state you’re in, may or may not be extended to include the children and is not an impediment to the parents making arrangements regarding the children spending time with the other parent.

A restraining order will usually contain, within ‘Part B’:

  • the ability to communicate with each other regarding the children (but this must be checked carefully to ensure that it does); and 
  • will usually contain a provision that states the restraining order will not be breached if the other parent complies with a parenting order or parenting plan (but this must be checked carefully to ensure that it does).

The party applying for a restraining order may wish to extend it to include the children or exclude them from it. If they include the children, they can include an exception that the restraining order will not be breached where the parties communicate by:

  • SMS;
  • text message; or 
  • email.

This leeway is to discuss arrangements regarding the children spending time with each parent and handover arrangements and financial matters arising from their separation and the financial support of the children.

Family violence and the law

Woman embracing and hugging friend after seeking AVO restraining order

In some instances, one parent may make allegations against the other parent that the children are at risk of harm or have been exposed to harm from the other parent, such as:

  • one parent has mental health problems where they are not compliant with recommended treatment or prescribed medication;
  • substance or alcohol abuse problems;
  • anger management issues; or
  • family and domestic violence issues.

Here, the court will adopt a cautious approach and act protectively for the children.

If you need free, confidential support to leave a relationship of domestic violence, call 1800RESPECT on 1800 737 732, or visit their website. If you are in immediate danger, call 000 for police and ambulance help.

Part of this approach may include appointing an Independent Children’s Lawyer, whose role is to represent the children’s best interests and investigate the allegations. They will often do this by issuing subpoenas to obtain relevant documentation to assist the Court in its decision-making process (including obtaining medical records, information from the school, and so on). 

In cases where one party makes serious allegations of harm or risk of harm to the children and opposes the children spending time with the other parent or seeks the other parent’s time to be supervised, the time to trial is likely to be longer. The risk of the parent and child relationship being adversely affected by the passage of time and parental conflict is greater. 

In this instance, the children may become anxious about spending time with the other parent. In some cases, the children’s exposure to false allegations may result in good and innocent childhood memories replaced by darker false memories. 

In such cases, the parent who seeks to have a relationship with their child and who is subject to parental alienation by the other parent has to decide whether to continue with contested proceedings for final orders to spend time with the child or walk away. 

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