Separation – What happens to the children?

Relationships (Family)

One of the most important issues to resolve when you separate from a partner is how you will each share the care of the children. Many families require assistance to work out a fair and practical child care arrangement that is in the best interests and welfare of the children.

There are various avenues available to you to assist in reaching an agreement or resolution.

Private agreement

If you and your partner are able to reach an agreement as to the care of the children, between yourselves, then this can form part of a private agreement.  This agreement may be quite general or can be very specific and include days and times for changeovers.  An agreement may be written up informally between you and your partner or you may wish to receive some legal advice and have the agreement recorded in a more formal manner.  It is important to note, however, that a private agreement is not enforceable in the Family Court and there is no penalty if either party breaches that agreement.

Family Dispute Resolution

If you cannot reach an agreement between yourselves, then it may be necessary to utilise the services of a mediator with Family Dispute Resolution.  Family Dispute Resolution is an informal, out of court, mediation to assist families in reaching an agreement regarding the care of children.  It is sometimes possible for lawyers and support people to attend this mediation. If an agreement is reached at Family Dispute Resolution then this can be drawn up as a private agreement.  It is important to note that if you would like that agreement to be made in a Parenting Order, then an Application to the Family Court, by consent, will be necessary.

Application to the Family Court

An Application to the Family Court for a Parenting Order will be necessary if you cannot reach an agreement or if you would like your parenting agreement to be formalised in a Court Order.  An Application may be made on an urgent basis (“Without Notice”) or non-urgent basis (“on notice”). An on notice Application is the usual application to be made , unless there are special circumstances. There are some mandatory pre-requisites before you can make an application with the Family Court.  Those pre-requisites will depend on the type of application you are making.  A Parenting Order is a formal court Order that records who has the care of the children and when that will occur. It can be very broad or can be quite specific.

When you are starting to think about what should go into the parenting agreement/Order, it can be helpful think about the following things:

  • What should the usual term time care arrangements look like?;

  • What will happen during pre-school or school holidays?;

  • Do you need to take into account any special occasions such as Christmas or birthdays?;

  • Will the children be able to travel overseas on holidays with either parent?

  • Are there any other circumstances that may be unique to your family that need to be taken into account?

If you would like any more information or advice about how to resolve any issues with regards to your children, or other issues relating to separation, then please contact the relationships team at Cavell Leitch.

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