Do what you need to do to make this tough personal decision first

This is the first and most important question to answer. You owe it to yourself and your children. Take the time and energy to work out the value of the relationship to you in personal terms. See a counsellor, talk to your partner.

Do what you need to do to make this tough personal decision first.

If you decide to separate, you have three main considerations:

Practical arrangements

Who is moving? Where to? How will you finance the move and deal with interim income, expenses, and debt management?

Parenting arrangements

This is perhaps the most important task at this stage.

Couples with children must create a sustainable, cooperative parenting arrangement that serves the child’s interests in the new circumstances. See article on 8 do's and don'ts in parenting matters

Property settlement

Do not rush into a quick settlement. Initially, get some idea of what the law would decide is a fair settlement in your situation. Plan the process carefully and aim to get the smartest possible distribution and settlement. 

Separation can be amicable…

Many couples divorce and reach agreement on settlements without external assistance and huge legal fees. It does not have to be a complex nightmare. There are risks in concluding entirely private settlements, but many couples do separate amicably and manage to make friendly and effective arrangements in the parenting and property spheres.

Community-based, there are, however a few issues that you need to understand and address up-front, even if the separation is amicable.

  • For married couples, the date of separation and what defines separation.
  • For de facto couples – is it an “eligible” de facto relationship, giving rise to property rights under the law?
  • Get your own (not with your former partner) initial legal advice. (Even if the relationship is friendly at that stage.)
  • When and how can you get divorced
  • Rearranging property and finances.   See Property settlement article
  • Setting up a “child-centred” new parenting arrangement.  See Parenting article
  • Negotiating tips.  See article negotiating privately with the other party

Develop a strategy for dispute resolution

It is important to formulate a strategy early on in the process of separation for dealing with possible future conflict resolution. You have to make many joint decisions to finalize the separation, preferably with the least possible damage to yourself, the other party and the children. Be prepared to handle and manage any possible future conflict.

Keeping your sanity

This can be a very stressful time – whether you resolve issues by private negotiation, litigation or family dispute resolution. The separation process will involve uncomfortable discussions of personal and highly sensitive issues. You and your partner both have to deal with major changes in your circumstances, and you may not be in the best frame of mind for dealing and settling disputes. Make every effort to stay sane. If you become over-stressed, you run the risk of making poor decisions in settlement negotiations.

Take care of yourself. Exercise regularly, talk to a friend, or a professional, who is not part of the process. Have a life outside of your family law issues. You need that to stay sane and make good decisions that will affect the future of you and your children.

Check your behaviour

This is not the time to lose control. The process of separation remains an arena where many exhibit less than appealing behaviour. Your behaviour and language towards your former partner and your children must remain proper at all times. Do not criticize your partner in the presence of your children. Abuse, violence, irresponsible behaviour, substance abuse, and hysteria will not contribute towards reaching early resolutions. If you lose control, on any occasion, privately or publicly, you can expect the details of your behaviour to appear in the other party’s documentation - in the most unflattering terms. If you conduct yourself in a less than a proper way in court, your case might be irretrievably damaged.

If you sense that you are losing control, or becoming angry, during negotiations or communications, remove yourself from the situation. Take a break and only resume when you feel under control again.

Children are not property

Children are not like assets to be distributed and “divided fairly”. Parents may think it is their right, but it is the children who have the rights. They have the right to be safe, and the right to be with, and be cared for by, both their parents.

Parents have to see their child’s interests as separate from their own. Your task as a separating parent is to prefer your child’s best interest above your own. If the dispute ends up in court, the court will take an objective view of what is in the child’s best interest. It may also take a retrospective view to assess whether the behaviour of the parent reflects a similar interest.

Winning is not always “winning”…

Get a realistic idea of your prospects at an early stage from a lawyer. Do not waste time, energy and legal fees pursuing small matters. Making small concessions might be wise and productive in a process that doesn’t produce many winners. Winning might be more about moving on after the dispute with a happy, healthy and sustainable lifestyle, than getting what you “wanted”.  If you “won” at the expense of your health, your principles or a good relationship with your children, you may have lost a great deal more in the longer term.

Finding help - Support services

Feeling lost and confused is perfectly normal. Seek help for you and your children early on in the process. Consider the following for support:

  • Community-based support services
  • Visiting regularly with a professional counsellor for support in dealing with emotional issues.
  • Independent Family dispute resolution practitioners provide mediation to assist parties in dispute resolution by agreement, instead of going to court.  Read about family dispute resolution.
  • Children’s Contact Services assist children to establish and maintain a relationship with the parent with whom they don’t reside. (Eligibility requirements and waiting lists might apply)
  • In high conflict cases, the Parenting Orders Programs provide family members access to counselling, family dispute resolution, and group work education.
  • Legal Aid offices in some states provide early intervention services to prevent dispute becoming an entrenched feature of the process.
  • Post Separation Cooperative Parenting (PSCP) helps high conflict parents refocus on the child’s needs.
  • Supporting Children After Separation Program (SCASP) provides support in maintaining healthy family relationships and assists children in participating in decision making that affects them.

The Applicable Law

The Family Law Act 1975(Commonwealth) is the cornerstone of the Australian family law system. However, in Western Australia, it only applies to married or previously married parties.

The Federal Circuit Court Act was created to fast-track some matters under family law. It is important to know the difference between the way the Family Court and the Federal Circuit Court handle family law matters before you begin a case. Child support matters are regulated by the Child Support (Assessment) Act 1989 and The Child Support (Registration and Collection) Act 1988.

This article cannot deal comprehensively with the legal matters involved in separations. Obtaining initial legal advice early in the process, planning and establishing a support base will assist greatly in navigating your way to successful settlements.