Unless you have been abusive to your children, the legal system recognizes that you are still entitled to maintain a healthy relationship with your children. In fact, the principle that children benefit from having both parents involved in their lives is embedded in Australia’s Family Law Act. How you will make that principle work is one of the most important things you need to think about if you are contemplating separation or divorce.
This eBook discusses parenting after separation or divorce. It provides information about your rights and responsibilities as a divorced parent, about how the Family Law Courts resolve parenting disputes, and about steps you can take to resolve parenting issues without the court’s involvement. This eBook does not and cannot give you legal advice. It is intended as a general overview. Every family’s situation is different. If you have parenting issues that you and your spouse cannot resolve to your satisfaction, you should seek advice and representation from a family law lawyer.
People get divorced for many reasons. It is often the best decision for both spouses. It might also be best for your children, since living with two parents who do not get along with each other can be a stressful experience for a child. It is nevertheless important for divorcing parents to remember that their children come first. You should make your best effort to put aside the differences you have with your spouse so that you can agree on ways to minimize the disruption that divorce will have on the lives of your children.
Children often feel they are responsible for their parents’ divorce. One of the first decisions you need to make is whether you or your spouse, or both of you together, will explain to your children that you are separating or divorcing and your reasons for doing so. You should make your children understand:
It is natural for children to respond to bad news in a negative way. If your children experience a period of hostility or anger, if they appear to be isolated and do not want to spend time with one or both parents, or if they seem to fear being abandoned, do not be alarmed. If those behaviors continue after your children have had time to adjust, consider getting help from a community-based counselling service.
Whatever differences you have with your spouse, you should try to set them aside long enough to agree on some basic rules for interacting with your children. No matter how poorly you and your spouse are communicating, try to agree that:
It isn’t easy to be a parent and it is even more difficult to be a divorced parent. You need to be in a healthy emotional state if you want to be an effective parent. Do not be afraid to seek therapy or counselling to help you cope with your divorce. There are classes you can take to help you adjust to your new role as a divorced parent. A number of helpful resources are available on the internet. A good starting point is Me and My Kids: Parenting from a Distance, published by the Department of Human Services in partnership with the Child Support Agency and the Family Court of Australia.
It is not unusual for parents to feel guilty about the impact their divorce has on their children. Some parents respond to those feelings by thinking “my kids are better off without me.” It is important for your sake as well as your children’s for you to get past those feelings. Even if your children are with their other parent most of the time after you separate or divorce, it is important that you maintain a good relationship with them. You can do that by:
You have a legal obligation to assure the safety and well-being of your children. Separating from a spouse does not change that. Neither does divorce. Even remarriage does not end your responsibility for your children. Only a court order can alter your duty to your children.
Unless a parent abuses the children or creates a risk of family violence, Australian law presumes that parents should share parental responsibility equally. It is presumed that parents should make decisions jointly that affect a child’s welfare, health, or education. That presumption relates to your responsibility to your children, not to the amount of time your children spend with each parent.
While it may be ideal for a child to spend equal time with each parent, it is not always practical and it may not always be in the child’s best interest. If parents live some distance from each other, a child’s need to attend school, to engage in after-school activities, to spend time with friends, and to live in a stable environment might require that the child spend more time in one parent’s residence that the other’s.
Parents are encouraged to reach agreements with each other concerning parenting issues, using the court as a decision-maker only as a last resort. Those agreements should consider where the children will live, when they will have contact with the other parent, the nature of that contact, and how the parents will communicate with each other to make decisions about the children. Informal agreements made by parents can be expressed in a parenting plan.
A family counsellor or a family dispute resolution practitioner can help parents make a parenting plan. The role of those advisers is discussed more fully in Family Dispute Resolution (Mediation), an eBook in this series.
At one time, parenting plans were registered with the court. The current practice is to ask the court for a consent order if parents want to make their agreements enforceable. The Consent Orders eBook in this series gives you more information about the purpose of consent orders and how to obtain them.
You do not necessarily need a court order if you and your spouse can agree upon the best way to parent your children after separation or divorce and if you both abide by that agreement. If you can agree but want a court order so that you have a way to enforce your agreement, you can apply to the court for a consent order. If you cannot agree, you can apply to the court for a parenting order. Before applying for a parenting order, you will probably need to follow the pre-action procedures discussed in Preparing for Separation and Divorce.
In most cases, you will also need to attempt to resolve your differences using the procedure discussed in Family Dispute Resolution (Mediation). Courts will generally not make a parenting order unless the parents have attended family counselling.
Doing what is best for the children is the paramount consideration in making a parenting order. Other principles that guide the court are:
Parenting orders generally address one or all of these four issues:
A parenting order will only be made after a hearing during which the court considers various forms of evidence, including (if necessary) expert opinions and court reports.
Children and court hearings
Children are not usually made to testify in court. If the court needs to know more about a child’s feelings or desires, it will usually direct a family consultant to prepare a report for the court’s use. The family consultant will talk to the children and relate their view of parenting issues to the court in the court report. The family consultant might also investigate the child’s family life and report on the ability of each parent to provide a safe and nurturing environment for the children.
In some cases, the court will appoint an independent lawyer to represent the best interests of the child. While the lawyer must make the child’s wishes known to the court, the lawyer is not required to follow the child’s instructions. The lawyer is independent and impartial. The lawyer represents the child’s best interests, not the child.
Warning and Disclaimer
Children and Divorce by Alan Weiss is a self-help eBook written from the perspective of the author.
The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.