Rights of separated parents to their children
The question around rights of separated parents to their children stems from a common misconception that parenting orders are intended to confer rights to separated parents.
Under Australian family law, it is the children who have the right to enjoy a meaningful relationship with both their parents and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm, rather than any conveniences that the separated parents may want to protect. A meaningful relationship is one where a child has a close and continuing involvement with both parents.
There is a rule of equal and shared parental responsibility that both the mother and father share, unless there is an order determining otherwise. This means that both parents are responsible for the major long-term decisions in relation to the child such as:
- where a child will go to school,
- major health decisions,
- religious observance,
- change of name and
- changes to living arrangements that make it significantly more difficult for the child to spend time with a parent.
Both parents have the responsibility to care for the welfare of their offspring as well as being accountable for their upbringing by supplying them with food, shelter, and clothes.
However, it is important to note that equal shared parental responsibility is not the same as equal time spent with children. There are no hard and fast rules about arranging for which parent a child will live with or spend time with after their parents separate. This also means that there is no rule that children must spend equal or “50:50” time with each parent.
Despite the strong emphasis given to shared parental responsibility after separation, the paramount consideration of the court remains the best interests of the child. Shared parenting outcomes are preferable, but only where this is consistent with the best interests of the child.
The expressed wishes of a child are considered, and the court may give such weight as it considers appropriate to the child’s wishes in all the circumstances, particularly considering the child’s age and maturity. Children do not usually go into court, but their attitudes and views may be made known to the court in a family report or through an independent children’s lawyer.
Separated parents can enter into either Parenting Plans or lodge Parenting Orders in the Family Court. There are advantages to both options.
Generally, there is more flexibility with parenting plans. If parties can communicate freely, compromise, adapt to different situations and are able to focus on their children’s best interests but are wanting some structure in their co-parenting relationship, then a parenting plan may be considered.
Consent orders, on the other hand, are legally enforceable, create binding obligations and may serve as a deterrent for breaching an agreement, in addition to providing a procedure for enforcement or consequences, if breached without good reason.
Deciding which option would best suit your circumstances is often a difficult task, and you may benefit from some advice and guidance from one of our experienced family lawyers.