Who Will The Children Live With?
The decision about where your children will live and their ongoing arrangements are likely to be the most important and difficult decisions you will make once you have decided to separate.
The Law in Australia presumes that parents have equal shared parental responsibility. However, this doesn't apply if there is any risk that the children will be exposed in any way to physical or psychological harm.
What Is Equal Shared Parental Responsibility?
Essentially as parents you are directed to consider what is in the best interest of the child. The two main considerations when determining this are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm arising from abuse, neglect or family violence.
To read more about the
best interests of the child click here.
you're asked to establish if it is practical and in the best interests of the child to spend equal time with each parent, or substantial and significant time with either parent or other relative.
This can be decided through informal or formal means such as:
- Informal negotiations
- Mediation
- Conciliation
- Formal negotiations using lawyers
it's a good idea to decide on at least interim parenting arrangements as soon as possible. Unfortunately this may be difficult as it is likely that you will both be under a lot of emotional stress.
You may find that a counsellor or mediator may be helpful during this process. Don't worry things will eventually settle down and it will become easier over time to sort out outstanding issues and arrangements.
What Is Substantial And Significant Time?
Substantial and significant time includes spending days (and nights) that fall on:
- Weekdays
- Weekends
- Holidays
It also enables a parent to be involved in your child's daily routine and special events.
Unless agreed to, equal or substantial time is likely to be only denied in exceptional circumstances where it is not in the best interests of the child e.g. in situations where it is necessary to protect the child from physical or psychological harm.
What Is Parental Responsibility?
Parental responsibility covers decisions regarding things like:
- Education
- Religious upbringing
- Cultural upbringing
- The child's health
- Any changes to the child's living arrangement
The law states that these decisions should be made jointly by both parents.
Do I Have To Pay Child Support?
As parents you are both responsible for the financial support of your children until the age of 18 (or until completion of the school year in which the child turns 18). You can enter into a private agreement with your former partner or the Child Support Agency (CSA) can collect it.
The CSA has a number of useful tools to help you work out child support obligations;
click here to get an estimate from the CSA.
To find out the amount of child support you should pay, contact the CSA on 131 272 (within Australia) or
visit their website.
Do I Have To Pay Maintenance?
When a couple separate it is expected that each of you will try and support yourselves. However, if either of you are unable to meet your own needs and the other person is able to help then maintenance may be payable.
Factors that may impact a person's ability to provide for themselve's include:
- Having to care for young children
- Age
- Physical or mental disability that makes them unable to work
What Are My Responsibilities As A Separated Or Divorced Parent?
Your responsibility as a parent doesn't end with separation or divorce, and legally continues until your child is 18. All parents, whether married or not, have the responsibility to ensure that their children receive adequate and proper parenting.
Except in extreme circumstances (i.e. when it's not in a child's best interests), the family law system takes the stand that children have the right:
- To know and be cared for by both their parents
- To spend time on a regular basis with their parents and other people significant to their care, welfare and development.
Do I Still Get Custody Of My Children?
Terms such as 'guardianship', 'custody', 'access', 'residence' and 'contact' are no longer used in the Australian legal system.
Parents now share parental responsibility for their children and arrangements for children are now covered by the terms 'live with', 'spends time with' and 'specific issues'.
| New Terms | Old terms |
| Who the child lives with | Custody, Residence |
| Who the child spends time with and communicates with | Access, Contact |
| Parental responsibility | Guardianship, Specific issues |
What Can I Do If I'm Scared That My Former Partner May Take Our Children?
If there is any fear that your former partner or any other family member may remove your children or has already done so, you can apply to the court for an urgent Order. The Order can legally enforce your children to be located, returned to you or help protect the children from being removed.
If you are at all concerned that this may happen to you please seek immediate legal advice.
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