Sharing the Care of Children after Divorce

Last revision: Last revision:28th July 2023
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Navigating through a divorce can be challenging for everyone involved, especially for children. In Australia, the legal system offers guidelines to ensure the wellbeing of children is prioritised during this difficult period. This article aims to provide an in-depth understanding of how divorcing parents can share the care of their children under Australian law and the role of various legal documents in this process.

Understanding the Family Law Act 1975

The Family Law Act 1975 is the cornerstone of family law in Australia. It emphasises children's right to have a meaningful relationship with both parents, as long as it serves their best interests. The Act aims to protect children from physical or psychological harm and exposure to abuse, neglect, or family violence.

When determining parenting orders, the 'best interests of the child' standard guides the Courts' decision-making. Factors under consideration include the child's views, their relationship with each parent, each parent's attitude towards parenting, and any history of family violence.

Shared Parental Responsibility

In most cases, Australian law applies the presumption that shared parental responsibility is in the best interests of children. This means both parents retain a say in long-term decisions, such as those involving education, health, and religion. It does not necessarily imply an equal division of time, which is determined based on the child's best interests.

However, the ultimate consideration is what is in the best interests of the child. It is not a question of the parents having the 'right' to see their child. The courts consider that it is best for most children to have a relationship with both of their parents. But if there is a history of domestic violence or abuse from one parent, then the courts may decide that it is not in the best interests of the child for that parent to spend time with the child.

Prenuptial Agreement

A Prenuptial Agreement, also known as a 'Binding Financial Agreement' (BFA) in Australia, is a legal contract created ahead of time. The two parties prepare the agreement before marriage and use it to set out how their assets and financial resources will be divided in the event that the marriage dissolves. In some cases, matters relating to children may be addressed in the Prenuptial Agreement - for example, by setting out how child support will be paid in the event of a relationship breakdown.

Even if the Prenuptial Agreement does not directly influence the sharing of children's care post-divorce, it can indirectly affect children by providing a clear framework for financial matters between the parents, thus potentially reducing conflict and instability during the divorce process.

A Prenuptial Agreement is a great way for parties to come to an agreement about what is fair and reasonable, before the relationship breaks down. Often, once the relationship has broken down parties find it harder to work together or come to an agreement about how things should be handled, which can lead to a stalemate and can drag things out and increase costs.

Separation Agreement

A Separation Agreement, often referred to as a 'property settlement agreement,' is another form of Binding Financial Agreement (BFA) but it is entered after the separation has occurred. It outlines how property, financial resources, and debts will be divided between parties upon divorce. It may also cover spousal maintenance and other relevant matters. While children's matters can be included in a Separation Agreement, (such as child support payments) it's typically advisable to address these separately in a Parenting Plan or Consent Order, focusing on the children's best interests.

Parenting Plan

When a relationship breaks down, one of the first steps to sharing care after a divorce is establishing a Parenting Plan. This written agreement outlines the terms for parenting, including where the children will live, their time division between parents, modes of communication with each parent, parenting values and approaches to parenting, co-curricular activities, how and where they will be educated, how their living expenses will be paid, and how decisions will be made about their welfare.

Although Parenting Plans are not legally enforceable, they serve to create a blueprint for co-parenting and reduce potential disagreements. In the event of later disputes, the court may consider the terms of a Parenting Plan.

In the aftermath of a relationship breakdown, tensions are often high and it can be difficult for the parents to find a way to cooperate. A Parenting Plan is an extremely valuable tool in these circumstances as it can help the parents to take a respectful, amicable and pragmatic approach to important parenting decisions. It helps them to consider important matters relating to their children which they may otherwise have overlooked, and it helps them work towards their shared goal (improving the wellbeing of their children).

For a legally enforceable agreement, parents may choose to apply for Consent Orders. This involves parents agreeing on arrangements and asking the court to formalise this agreement. The Court will only make a Consent Order if it deems the arrangements to be in the best interests of the children.

Parenting Orders

If parents can't agree on arrangements, one or both parents can apply for Parenting Orders. The Court considers the child's best interests when determining these orders. Factors considered include the benefit to the child of having a meaningful relationship with both parents, protection from harm, the child's views, the nature of their relationship with each parent, and each parent's willingness to facilitate the child's relationship with the other parent.

Family Dispute Resolution

Before applying for a Parenting Order, parents usually must attend Family Dispute Resolution (FDR). This process helps parties resolve disputes and reach an agreement. A certificate from an accredited FDR practitioner is necessary to apply for a Parenting Order.

Useful Documents for use After the Divorce

(1) Travel Consent Form

A Travel Consent Form is a legal document that a parent can use to give another guardian (such as the other parent) permission to travel with their child. It is particularly crucial in cases where children are travelling overseas with one parent, safeguarding the rights of the other parent. Provisions about travel, including overseas travel, should be included in your Parenting Plan, and a Travel Consent Form provides an additional layer of legal protection and prevents potential misunderstandings or disputes.

If one parent tries to travel with the child, without a Travel Consent Form, then there is a risk they may be stopped by immigration authorities who accuse them of kidnapping the child. In addition, in some cases it could be a breach of their Parenting Plan, Consent Orders or Parenting Orders for them to travel with the child and without the consent of the other parent. Even if they are doing it with the best of intentions, the court may take a dim view of this conduct and they could be penalised for it or have it used against them in future proceedings.

(2) Child Care Agreement

A Child Care Agreement is an agreement typically made with a third party, such as a childcare centre or a babysitter, outlining the terms of the child care. This document can be important in the context of divorce, as both parents need to agree on the childcare arrangements. The terms of a Child Care Agreement may also need to be taken into account when constructing a Parenting Plan.

(3) Child Support Demand Letter

A Child Support Demand Letter is used to request child support payments from the other parent. Under Australian law, the Child Support Agency usually assesses child support. In a divorce situation, the primary caregiver may need to draft a Child Support Demand Letter if the other parent is not meeting their obligations. It's crucial to keep this aspect in mind when discussing the shared care of children after divorce, as the children's financial needs should be adequately met.

In conclusion

Sharing the care of children after divorce under Australian law is designed to prioritise the children's best interests. A good understanding of the legal system and various related documents can help parents navigate this complex period, ensuring that decisions are made to serve their children's wellbeing. By communicating clearly and respectfully with the other parent, and using the appropriate legal documents to record their arrangements in writing, both parents can work together to achieve a positive outcome for all people involved. Using an ad hoc approach, without the proper documentation or without clear communication can lead to misunderstandings, increased tension, or accusations that one party or the other has bad intentions.

Each family's situation is unique, and it is highly recommended to seek the advice of a family law professional to guide you through this process. The primary aim should be to create a stable and loving environment for your children, no matter the changes in your family dynamics.

Templates and examples to download in Word and PDF formats

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