The breakdown of a relationship is not usually easy, especially where there are  children involved. When you are trying to resolve financial matters and/or parenting arrangements, you should also be concerned about trying to get the best outcome for any children of the relationship.

The breakdown of a relationship can be a stressful time for any children of the relationship, whatever their age(s). 

Fortunately, there are things you can do to attempt to ensure that your parenting arrangements achieve the best possible outcome for your children and your family as a whole.

How your child’s age affects their needs

Children of different ages will have different needs, depending on their physical and emotional development, the level of care they require, and the social life they have outside the family home. Your parenting arrangements will need to take these factors into account.

Babies and young toddlers are often cared for predominantly by one parent, known as the primary caregiver. If the child is separated from their primary caregiver for lengthy periods of time, it may cause them a great deal of stress. Parenting arrangements for babies and toddlers will need to take this into consideration when deciding what is in the best interests of the child.

Children under 6 years (but older than babies and toddlers), are usually more independent but they are often still too young to understand why their family is changing. They might express their distress through their behaviour, such as through changes to their sleeping habits, toilet training progress, or language development.  They may become more ‘clingy’ or insecure.  You can help your young children cope with a divorce/separation and adjust to their new living arrangements by establishing solid routines and regular days with each parent, so they have certainty and stability and know when they will be seeing the other parent next.  It is usually preferable to encourage and promote your children spending time with the other parent, subject to the need to protect your children from any physical, sexual and/or emotional harm.

Older children often have a social life outside of the family home. They are also more likely to be able to express their feelings about the separation, so encourage them to talk about their feelings, if they wish. Try to make sure your parenting arrangements allow them to continue with sports, music lessons, and any other extra curricular activities that they enjoy.

Teens are likely to be quite independent, so you may need to give them some space to process their feelings about the separation. Your parenting arrangements may need to be flexible enough to allow them to spend time with each parent by taking into account their wishes and to enable them to continue their normal social activities and events no matter which parent is caring for them.

Who should make decisions about your child/children’s care?

Some parents think they should let their children make up their own minds about where they live and whom they live with.  But unless your children are teenagers, your child may not be comfortable with or mature enough to make these kinds of decisions.  Even teenagers may need guidance on this issue and their wishes should be taken into account but should not necessarily be the deciding factor.

It is usually in their best interests to encourage and promote your child/children spending substantial and significant time with the other parent with whom they do not live.  You can discuss the matter with your child, ask them how they feel and listen to their wishes, but at the end of the day the best decisions are usually the ones made by both parents jointly (save for situations involving family violence, abuse or some other reason). 

If you and your ex-partner cannot agree on parenting arrangements, mediation is compulsory (unless your situation is deemed unsuitable for mediation or your matter is urgent) prior to being able to apply for parenting orders in the Family Court.  A family dispute resolution mediator can meet with you and your ex-partner (individually and jointly) to assist you to try and reach an agreement that works for both parties and is deemed to be in the best interests of the child/children. 

In situations where agreement has not been reached at mediation (unless your situation is deemed unsuitable for mediation or your matter is urgent), or in situations where agreement has been reached, you and your ex-partner will then be able to make an application in the Family Court for parenting orders  (by consent or otherwise).

How does the Family Court decide on parenting arrangements?

The Family Court’s main objective is to focus on the best interests of the child.  The relevant statutory provisions state that in deciding whether to make a particular parenting order in relation to a child, the Family Court must regard the best interests of the child as the paramount consideration.

In determining what is in the child’s best interests, the primary considerations that the Family Court must consider are:

(a)   the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)   the need to protect the child from physical, sexual and/or emotional harm (including from being subjected to, or exposed to, abuse, neglect or family violence).

There are also a number of additional considerations that the Family Court must consider, including: any views expressed by the child; the age and maturity of the child; the nature of the relationship of the child with each of the child’s parents and other relevant persons (including grandparents or other relatives); the likely effect of any changes in the child’s circumstances; the capacity of each of the child’s parents and any other relevant persons (including grandparents or other relatives) to provide for the needs of the child; the parental responsibilities demonstrated by each parent (or relevant person); any other fact or circumstance that the Family Court deems relevant.

If the Family Court has cogent evidence before it to support the reasonable belief (whether the belief is taken by the Court of its own initiative or on the assertion of one of the parties) that a child’s safety and wellbeing is at risk due to any of the factors in (b) above, the Family Court can revoke a parent’s access to the child/children (or have sufficient safeguards in place, such as supervision, to protect the child/children from abuse, neglect or family violence). 

However, unless a child’s safety and wellbeing is at risk due to any of the factors in (b) above, the Family Court usually encourages and facilitates both parents spending substantial time with their child and continuing to be actively involved in a child’s life in a meaningful way.  This is because it is usually deemed to be in the best interests of the child. 

Children who are wrongfully denied ‘access’ to the other parent (whether by reason of malicious and false allegations or otherwise) are likely to suffer psychological harm (whether in the short, medium or long term) and it is important to seek independent, professional legal advice to progress your matter if this applies to your case. 

Meet with a Family Lawyer

Getting good legal advice is usually the first step towards achieving the best outcome for your children.

Friedman Lurie Singh & D’Angelo, (with offices in Perth, Jindalee, Joondalup, South Lake and Rockingham), has a team of experienced family lawyers who specialise in divorce, de facto separation, property settlement and parenting issues. 

With  Friedman Lurie Singh & D’Angelo, you can rest assured that you’ll receive reliable, accurate, professional advice and practical tips on how to achieve the best outcome for your children.

To find out more, call  Friedman Lurie Singh & D’Angelo on 08 9254 0000 or visit www.flsd.com.au

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