Understanding Your Rights

Going through a separation never easy, particularly when there are children involved.  It is not possible for care arrangements to continue as they were when parties were together, and it is often difficult to come to agreement that both parties are happy with, particularly where there has been conflict. 

Sadly, it is often the case that Dad’s feel helpless post separation and feel that they are left with little say in the decision making and care arrangements for the children.

Common Misconceptions:

Some common misconceptions in Family Law are that:

  • The children will live primarily with Mum;
  • Mum is responsible for making all major decisions in respect of the children;
  • Parents have a right to 50/50 care of the children.

Whilst every family law matter is different, the underlying principle is that decisions must be made which are in the best interests of the child/children.

What are your RIGHTS?

The Family Law Act focuses on the rights of children and the responsibility each parent has towards their children.  Whilst parents have a right to see their children, the Family Law Act considers that children have a right to have a meaningful relationship with both parents.  However, in doing so, they must also be protected from harm.

There is a presumption that parents have a right to “equal and shared responsibility” of the children.  This does not necessarily mean a 50/50 care arrangement.  Rather, that both parents have an opportunity to spend regular and meaningful time with their children and for major decisions in respect of the children, such as medical decisions and schooling, to be made by both parents.

In considering whether equal and shared responsibility of a child is practical, consideration should be given to:

  • Both parent’s living arrangements and distance from each other;
  • parent’s current and future capacity to facilitate an equal time arrangement;
  • parent’s current and future capacity to communicate and make decisions together with regard the child; and
  • the impact the arrangement would have on the child.

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Where it is deemed that an equal and shared care arrangement is not is the child’s best interests, or is not reasonably practicable, consideration should be given to an arrangement whereby you spend substantial and significant time with the child.

This ultimately varies amongst cases, but it may look like:

  • over night time during the week to ensure you have some involvement in the child’s school week, such as an opportunity to assist the child with their homework, attend extra-curricular activities with the child and take the child to and from school;
  • weekend time with the child;
  • time for special occasions such as birthday’s, Christmas and Easter; and
  • school holiday time.

What can YOU do?

In negotiating an arrangement with your former spouse, it is important that you have consideration to your child’s needs and what is in their best interests.

If you are having difficulty in coming to an agreement, we always recommend attending mediation with a Family Dispute Resolution (FDR) consultant.

An FDR consultant can assist parties with narrowing down the issues in dispute and coming to an arrangement that considers things like:

  • who will make day-to-day decisions in respect of the children?
  • What care arrangements are to be in place during school terms?
  • How is time to be shared during school holidays and special occasions?
  • What happens if one parent wants to take the children on an overseas holiday?

Where a mediation is unsuccessful, in that an agreement is unable to be reached, it may be necessary to commence proceedings in the Family Court for determination.  This is always a last resort due to the significant delays, costs and stress that is involved.

Tash is the founder of Nolan Lawyers is a boutique law firm located in Sydney CBD. We specialise in family law, and take a pragmatic approach to resolving your family law matter quickly and in a cost effective manner, so you can move on with your life.

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