Author

Alan Weiss

24th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

The child’s response to separation - helping your child to cope

Studies have shown that it is high levels of conflict between the parents, and not the divorce itself, that has the worst negative impact on the children. Children may feel insecure, alone, unsafe and fearful of the future.

They find dealing with conflicting loyalties very difficult and often feel responsible. If you sense that your child is suffering, be available and attentive. Ask yourself, are the post-separation arrangements in your child’s best interest? What can you do to restore a supportive and secure environment for your child? If needed, consult a professional.

A child-centred approach

Children do not have the emotional or cognitive ability to deal with the responsibility of what is in the best interest of the child. You, as the parent, must decide that. Child-centred parents will take the views of their children into account. They will seek to value the child’s relationship with the other parent. They will re-arrange their own activities when considering the best possible parenting arrangements.

Talking to your child

Make time and energy available to help your child understand what is going on. Listen to your child’s feelings and opinions. If your child is more comfortable expressing him/herself with a non-parent, provide the opportunity for your child to speak with a friend, a relative or a counsellor. Whoever speaks with the child must be on the child’s side. They must listen, rather than tell.

Parenting principles and values in the law

The Family Law Act provides a framework within which the court will determine the child’s best interest when deciding on parenting orders. It will ensure that

  • The child has the benefit of both parents being involved to the fullest possible extent.
  • The child is protected from abuse, neglect or violence.
  • The child receives proper and adequate parenting to achieve their full potential.
  • The parents fulfil their joint duties and responsibilities concerning the welfare, care and development of the children.
  • Parents agree on their future parenting.

These aims provide important guidelines for both the court and the parents in determining “best interest” of the child. In considering parenting orders the court will evaluate whether the parent is trying to uphold these principles, regardless of the dispute between the parents, or whether achieving this might be difficult.

Your responsibility and “equal” shared parenting

Parental responsibility

The law has been amended over the years to shift the focus from parental rights to parental responsibilities and children’s rights. The aim is to move away from the notion that children are “assets” and to encourage the responsibility of shared parenting. If your case reaches the court, use of the current terminology will indicate respect for the focus on children’s best interest and parental responsibility.

Equal, shared parental responsibility – the court’s approach

In deciding on parental orders the court’s starting point will be the presumption that it is in the child’s best interest for the parents to have “equal, shared parental responsibilities” (e-s-p-r). The presumption will not apply if there are reasonable grounds to believe that the child was subjected to family violence or abuse by the parent (or a person living with the parent).

The presumption can also be rebutted by evidence that e-s-p-r would not be in the child’s best interest. In deciding whether to make an e-s-p-r order the court must consider the “reasonably practicable” and “child’s best interest” considerations to decide on time spend with each parent. The court might instead order that the child spends “substantial and significant time” with each parent if equal time is not reasonably practicable.

Effect of an espr order by the court

An equal shared parental responsibilities court order requires that both parents must consult each other and make a genuine effort to reach joint decisions about major long-term issues in relation to the child. This includes issues relating to education, religion, culture, health, name and changes in the living environment that make it significantly more difficult for the child to spend time with a parent.

What will the court consider when determining parental orders?

The best interest of the child will always be the court’s paramount consideration for deciding parental orders. It might not necessarily be the same as your own idea, but you and your partner may then focus your efforts on reaching a private agreement that would suit your own family specifically. You can, however, be held retrospectively accountable if there is litigation at a later stage.

In deciding “best interests” of the child the court will take many considerations into account.

The primary considerations, or “twin pillars”, are:

  • The benefit to the child of having a meaningful relationship with both parents.
  • Protecting the child from any potential harm (physical or emotional).

Priority is given to the latter pillar

Additional considerations to consider are:

  •  The views expressed by the child, and whether those views are reasonable.
  •  The child’s intellectual and emotional maturity and the child’s age and understanding.
  • The relationship between the child and the parent will be looked at carefully. How close are you to your child?
  • The relationship with siblings and grandparents. The court will actually consider all relationships important to the child when making the order.
  • The willingness of each parent to be a responsible parent.
  • The current parenting arrangements and the effect of a change of the status quo on the child.
  • The practical difficulty and expense of a child spending time and communicating with a parent
  • The capacity of the parent, or another significant person, to provide for the needs of the child. This includes emotional and intellectual needs.
  • Any characteristic of the child and parent - special talents, the onset of puberty, cultural background, special needs or any other characteristics that may be relevant.
  • The parental attitude to the child and the parental responsibilities. Are you able to put the child’s needs before your own?
  • Will the order lead to future proceedings, or could this be a permanent solution? The court will be keen to reach finality, where possible.

 The court is allowed to use its discretion to consider any fact that may be relevant in determining “best interest” of the child.

The way forward – post-separation parenting

There is no set formula of arrangements for parenting after the separation. It is a matter of what suits the particular child in the particular circumstances of that case. Case law is firm that each parent has the duty to actively promote and facilitate the relationship between the child and the other parent.

It might be difficult to come to terms with different standards of care, different values and routines at the other parent’s house. If the child’s welfare is being compromised, it may be possible to negotiate solutions or, if necessary, approach the court for a new order. If you are worried, be honest and examine whether it is possible that your concerns arise from a desire to control the care of the child, or your own negative feelings about the other parent. If the child adapts and is not negatively affected by it, you have to learn to let go.

Parenting the separation journey – a child centered approach

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