After parents have separated, one of the first issues that need to be addressed is plans for their children and future parenting arrangements.
For some parents, this works without too much hassle. Sometimes however, parents just can't agree and require assistance to reach a resolution whether it be by means of mediation, negotiations through family lawyers or litigation in the Family Law Courts.
If your children are living with their other parent, they have the right to spend meaningful time with you, too. That is a presumption that applies unless a court is satisfied you or your former spouse spending time with the children would not be in their best interests.
Sometimes parents are worried about their children's safety or care with the other parent. They need somewhere to raise their concerns and have the parenting arrangements for their children clearly spelled out. When parents are unable to come to an agreement about plans for their children, the court will make the decisions for them if called upon to do so. Ideally, a schedule might be reached that allows children to have equal time with each parent. As a practical matter, however, that is not always possible.
How much time you can spend with your children depends on a number of factors. One of the most important factors is whether that decision is made by the court or whether you can reach an agreement with the other parent.
Who decides when I can see my children?
The Family Law Courts in Australia encourage parents to make their own decisions about parenting, including where children will live and how often they will spend time with a parent with whom they do not reside. In most cases, you cannot ask a court for a parenting order to resolve those issues until you have engaged in a family dispute resolution procedure, such as mediation, in an attempt to reach an agreement with the other parent.
Obviously, it is best to reach an agreement with the other parent, if possible. You and the other parent have a better understanding of your situation than a stranger who judges your case. No agreement reached through compromise is perfect, but negotiating a schedule for spending time with your children will often give you a more satisfying result than leaving that decision to a judge.
In some cases however, the other parent refuses to recognise your children’s entitlement to have meaningful relationship with you and/or fails to negotiate in good faith. You will need to work closely with your family lawyer to decide whether continuing the family dispute resolution process would be futile and whether a judge will likely make a parenting order that gives you more time with your children than the other parent will agree to give you.
What factors determine how much time I can spend with my children?
The law about parenting arrangements changed a few years ago and some of the ideas and words used are different nowadays. One of the most important changes to the Family Law Act is that it makes the children's best interests the paramount consideration.
Unless it is contrary to a child’s best interests, a child has a right to:
- a meaningful relationship with both parents
- be protected from abuse, neglect or family violence
- receive adequate and proper parenting to help them achieve their full potential
- know and be cared for by both parents
- spend time with and communicate with both parents and other significant people, such as grandparents and other relatives
- the support and encouragement necessary to maintain a connection with their culture.
The words “custody”, “access”, “guardianship” and “contact” are no longer used. Decisions made are about who the children will “live with”, “spend time with” and “communicate with”.
The law has changed about the rights and responsibilities of parents.
The law now says children have the right to spend time with and communicate with both parents.
It is not about parents' rights to see their children.
- With those principles in mind, the court will consider several practical factors when deciding how much time you can spend with your children, including:
- The distance the parents live from each other;
- Whether a schedule of equal time with each parent is practical, particularly if the parents are sharing equal responsibility for making decisions about their children;
- How much time you want to spend with your children;
- How much time you have available to spend with your children;
- How much time the children have available to spend with each parent (that is, time when they are not in school or attending after-school activities);
- The ages of the children and the degree of their attachment to each parent;
- The nature of your relationship with your children and the amount of time you spent with them before asking the court for a parenting order;
- How much time your children want to spend with you, keeping in mind their need to maintain close contact with their friends (particularly if they are old enough to make mature decisions about how to spend their time);
- The amount of time needed to ensure each parent is involved in a child’s daily routine; and
- The need for each parent to spend time with children during holidays, birthdays, and special occasions.
The amount of time you can spend with your children depends upon how these factors fit within the principle that both parents should spend the maximum amount of time with their children that is consistent with their best interests.
Whether you are only wanting to come in for an initial consultation to ask about your matter, or you are already involved in court proceedings, we would be pleased to advise you and act for you, if necessary. Call us at Taylor & Scott Lawyers Sydney on 1800 600 664.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.