Separation can be a tricky period in a relationship that is difficult to navigate. Unless you know that you are planning to get divorced as an end goal, separation can mean a lot of different things for you, your ex-partner and your children from a short period to solve problems, to a complete break without a formal divorce, to a range of other things. But regardless of what separation means to you, there are a number of legal considerations that separated parents in Australia need to consider, which we will go over in this article.
It’s all About the Kids
First, before we get into some of the legal considerations, parents need to understand that all of these considerations need to come from the side of the kids. That means that kids have to be at the forefront of consideration for decisions and their well-being is important. So any decision, if it goes to the court, will have the kids’ best interests in mind when they make the decision. If you are making the decision privately or with a mediator, keep the children’s best interest in mind for all of them.
Meaningful Relationships are a Right
In Australia, children have a right to a meaningful relationship with their parents, unless there is a concern for safety. What “meaningful relationship” means is a relationship where the child has continued involvement that resembles the close connection they had prior to the split. This should be with both parents but it can also be with other caregivers. For instance, if one set of grandparents always babysit the kids while the parents are at work, this should be continued, even after a split.
Now that we’ve looked at those two points in regard to the kids, let’s look at other legal considerations that parents who are separating in Australia need to consider.
Equality in Parenting Responsibility
In Australia, parents who are separating need to consider that, legally, they both have the same level of parenting responsibility. In addition, this parenting responsibility comes with the same level of power, duty and authority over the children. That means that both need to have input into long term, or life changing, decisions being made for the children, regardless of whether you were married or are separating from a long term relationship.
One interesting point to make is that for decisions that are less life changing, such as moving out of the country, can be made independently. However, to help with the co-parenting relationship, Australian parents should set up communication to make decisions together.
Another point to make is that the courts can decide to remove parenting responsibility if it is in the best interests of the child.
Equal Responsibility Does Not Mean Equal Parenting Time
While parents may have equal responsibility, and everything that comes with that responsibility, unless determined by a judge, they do not have that equality when it comes to parenting time. In fact, unless parents agree without a judge, 50:50 time with the children is not always standard. This is very important to stress because, at one time, this was standard law in Australia; however, that is no longer the case.
Instead, courts are looking at the best interests of the child. If a 50:50 arrangement is not in the best interests of each individual child, then it will not be part of the court arrangement. Instead, a careful look will be taken in regard to the child’s needs, where they will have the best living arrangement and how the meaningful relationship can be nurtured regarding visitation time.
This can be quite overwhelming and parents can often disagree with what this looks like. There are a number of free guides that help you navigate a parenting order, which is one determined by the courts. However, it is always the best option for parents to make a visitation agreement together, being sure to have the children’s best interests, along with opportunity to nurture that meaningful relationship, at heart when you make your parenting agreement.
There is a Financial Duty to the Children
This was touched on already but Australian parents have a financial duty to support their children after the separation. This means that regardless of who the children live with, both parents have to financially support them. This can be done in a number of ways such as agreements between parents on shared expenses. Or there can be court ordered child support payments for the kids.
One thing that parents should understand is that in Australia, the Department of Human Services administers child support payments. They also have a number of resources to understand how much support should be given, and how parents can navigate the financial obligations that they have for their children.
Family Law is Gender Neutral
A final point that should be made about the legal system in Australia, when it comes to family law, is that it is gender neutral. This was determined in the Family Law Act 1975. With this law, there are no assumption in regard to gender of the parents or gender roles. What this means for parents who are separating is that traditional roles of parenting are not taken into consideration and the courts will look at relationships and the best interests of the children when determining the parent who will provide the primary care and residence.
This gender neutrality of the law enables dads to have as much say as moms and it enables either parent to hold the responsibility of primary caregiver. In the end, the courts all agree that the child thriving in a healthy and happy way is more important than traditional gender roles within parenting.
Understanding some of these legal considerations when you are separating assists in making sure that the separation is easier for both you and your children. We know that separation can have a lot of negative impacts on children, especially when it is not an amicable separation but knowing the legal considerations can make the transition much easier for all of you.