Parenting arrangements post separation

In the past the governing legislation provided for “guardianship”, “custody” and “access” and later “residence” and “contact”. Those terms are no longer used and rather, the current legislation focuses on “live with” and “spend time” arrangements.

Often the parenting arrangements that are established immediately following your separation will have a significant impact on the future and long-term parenting arrangements that are put in place for your children. Getting these early arrangements underway and settled may shape the nature of your relationship with your former partner moving forward and help to ease any conflict about those arrangements into the future. It is also often important for children to have a settled routine and understanding of their living arrangements.

The Australian Family law system recognises that there is a significant benefit to children if their parents reach an agreement amongst themselves in respect of any future parenting arrangements.

This is not always possible, and at times it may be necessary for parties to engage in litigation to resolve these issues. It is nevertheless a compulsory (with some exceptions) requirement that any person intending to seek parenting Orders in the Family Court of Australia or the Federal Circuit Court of Australia first engage in Family Dispute Resolution (“FDR”) with a Family Dispute Resolution Practitioner (“FDRP”).

Parties may themselves participate in FDR (without lawyers) or with the assistance of a family lawyer. FDR will typically take place with an experienced Mediator who will help the parties to focus on the best interests of the children and explore whether there are any avenues for agreement at a mediation.

It is important that you consider the most appropriate Mediator depending on your needs. We have built working relationships with a number of experienced Family Dispute Resolution Practitioners and can assist you in selecting the most appropriate to help guide you, and your former partner through this initial process.

A party is not able to commence proceedings for parenting Orders unless they have been issued with Section 60i Certificate by an FDRP (again, with some exceptions). Ordinarily, that requires both parties to engage in a Mediation and make a genuine effort to resolve the dispute.

An FDRP may still issue you with a Section 60i Certificate to enable you to commence proceedings in the event that the other party did not attend or refused to engage with you in a Mediation or if the practitioner does not consider that your matter is appropriate for Mediation.

The Family Law Act sets out a number of exemptions to the requirement to attend Mediation before commencing proceedings, including on the basis that:

• The Application is urgent, such as in circumstances where one party is concerned that another party is going to relocate a child’s residence without their consent, or when the other party is refusing to allow the child to spend time with a parent;
• There has been abuse of a child by one of the parties, or there would be a risk of abuse of a child if there were to be a delay in applying for a parenting Order from the Court;
• There has been family violence by one of the parties to the proceedings or there is a risk of family violence by one of the parties to the proceedings; or
• One or more of the parties is unable to participate due to incapacity.

Your particular circumstances will determine whether it is necessary for you to have engaged, or made attempts to engage, in this process before commencing proceedings. Whether you are seeking assistance in selecting an appropriate mediator or having a family lawyer present with you during a mediation, or your circumstances may give rise to an exemption to engage in Family Dispute Resolution, you should contact us to explore your options.

Children’s care arrangements, including the nature and amount of time the children have spent with each of their parents in the period following separation, are highly relevant in the early stages of contested parenting proceedings before the Court so it is vital that parents and carers receive immediate and proficient advice in relation to parenting matters as soon as possible.

If you are having any difficulty in communicating directly with your former partner about these kinds of arrangements, it is important that you do not delay engaging a family lawyer to assist you.

If you have any concerns about a child being exposed to harm spending time with another parent, or you do not think the living or time arrangements for your children are best for them, you should contact us immediately.