Ending a relationship and legally divorcing can be a traumatic experience for a couple, but when children are involved it becomes even more emotional and complex. To the Family Law Courts, the interests of the children are paramount and it is this principle that is used to make decisions concerning their welfare after you divorce.
From a legal standpoint, both parents are responsible for the care and welfare of their children until they reach their majority, at 18 years of age. The Court also takes the stance that cooperation between both parents and shared responsibility are also in the best interests of the children. If you are unable to reach an agreement with your ex-partner about the care of your children after your divorce or you believe that your children’s safety may be compromised if they are with your ex-partner, you may need the Family Court to intervene.
How to proceed if you both agree on caring for your children
If both of you can agree on custody arrangements and how to care for your children, then you can create a parenting plan. This is a written agreement between both parents that outlines the custody and care of your children post-divorce. A parenting plan however is not enforceable, it’s simply an agreement between both parents. However, if you want a more formal agreement of your parenting plan, you can present an Application for a Consent Order to the Family Court. This formalises your agreement and is legally enforceable.
Your parenting plan should at least cover the following items:
• Who has custody of the children or if custody is shared, is this an equal sharing?
• If changes need to be made to your children’s routines, how much notice must be given to your ex-partner?
• What happens if birthdays or special holidays occur when the children are with your ex-partner?
• Where will the children spend their holidays?
• Can the children be taken overseas on holiday?
• Are other members of the family encouraged to spend time with your children (grandparents, aunts, uncles, nieces, nephews, cousins, and so on)?
• Who will pick the children up from school or who will arrange after school care?
• How will their health care, choice of school, sports activities, culture and religious observances be maintained?
How to proceed if you cannot agree on caring for your children
If you and your ex-partner cannot agree on a parenting plan, then the Family Court can make a Parenting Order. This Order outlines the custody of the children, each parent’s responsibilities, and anything else deemed important to the care of your children.
Before applying to the Court however, you must have attended mediation, unless your personal safety is jeopardised by doing so.
A Parenting Order can be legally enforced and if breached by either parent, penalties can apply. If the parent who breached this order cannot be located a Location Order can be issued by the Court. If the children are not returned to the custodial parent, then the Court can issue a Recovery order.
Obviously, the best result for your children is that both you and your ex-partner agree amicably on the care of your children after your divorce. If you are considering a divorce and you have children, it’s always best to contact a Family Lawyer who can help to place the needs of your children as their main priority.