Divorce Separation

Establishing Parenting Arrangements After Separation in Adelaide

Separation can be a challenging time for families, especially when children are involved. One of the most critical aspects to address is how parenting arrangements will be established and managed moving forward. In Adelaide, and across South Australia, the legal framework is designed to help parents make decisions that are in the best interests of their children. This guide explores the options available for establishing parenting arrangements after separation, offering a clear path through what can often feel like a complex process.

Understanding the legal options for making decisions about children’s living arrangements, education, and health after parents separate in South Australia is key. Whether you’re considering an informal agreement, a formal Consent Order, or navigating the court system, knowing your rights and responsibilities is paramount. The goal is always to create a stable and supportive environment for children, ensuring their needs are met as their family structure changes.

What are Parenting Arrangements?

Parenting arrangements cover all the decisions about how parents will care for their children after separation. This includes who the children live with, how much time they spend with each parent, and how significant long-term issues will be decided. These issues typically involve schooling, religious upbringing, and medical care. The Family Law Act 1975 (Cth) is the primary legislation governing these matters in Australia, including for families in Adelaide.

The Act prioritises the best interests of the child, which means decisions focus on the child’s safety, wellbeing, and development. It encourages parents to agree on arrangements where possible, promoting shared parental responsibility. This doesn’t necessarily mean equal time with each parent, but rather that both parents are involved in major long-term decisions.

Options for Establishing Parenting Arrangements

There are several pathways for parents to establish parenting arrangements in Adelaide, ranging from informal discussions to formal court orders. The approach chosen often depends on the level of communication and cooperation between the parents.

1. Informal Agreements

Many parents initially try to work out arrangements informally. This involves direct communication between parents to decide on a schedule for children’s time with each parent, and how they will make decisions about their children’s lives. While flexible and often the least expensive option, informal agreements are not legally binding. This means if one parent deviates from the agreement, there’s no legal recourse to enforce it. For some families, especially where there’s good communication, this can be a suitable starting point.

2. Parenting Plans

A parenting plan is a written agreement between parents that outlines their parenting arrangements. It can cover the same ground as a court order regarding children’s living arrangements, communication, and decision-making. While more formal than a verbal agreement, a parenting plan is also not legally binding on its own. It serves as a strong statement of intent and can be a useful document to refer back to. For many, it’s a step towards formalising arrangements without immediate court involvement.

3. Consent Orders

Consent Orders are legally binding agreements made by parents and approved by the Family Court of Australia. They cover parenting arrangements and can also address property settlements. Once approved, a Consent Order has the same legal force as an order made by a judge after a court hearing. This offers certainty and enforceability. To obtain a Consent Order, parents must agree on all aspects of the arrangements and then submit an application to the court for approval. The court will only approve the order if it is satisfied that the arrangements are in the children’s best interests.

Obtaining a Consent Order often involves a process of negotiation between parents, potentially with the assistance of a legal professional or through Family Dispute Resolution. This can help ensure that all necessary details are covered and that the agreement is comprehensive and workable for the family. A Family Law Adelaide professional can guide you through drafting and lodging these documents.

4. Court Orders

When parents cannot agree on parenting arrangements, even after attempting Family Dispute Resolution, it may be necessary to apply to the Family Court of Australia for parenting orders. The court will then make decisions about the children’s care, time, and living arrangements. This process is typically more adversarial and can be more costly and time-consuming than reaching an agreement outside of court.

In court proceedings, each parent presents their case, and the court considers all relevant factors to determine what is in the child’s best interests. This might involve obtaining reports from family consultants or independent children’s lawyers. While a last resort for many, the court provides a structured process for resolving disputes when other avenues have been exhausted.

The Importance of Family Dispute Resolution in Adelaide

Before applying to the Family Court for parenting orders, parents are generally required to attend Family Dispute Resolution (FDR). This is a process where an independent mediator helps parents discuss their differences and try to reach an agreement without going to court. FDR is often a less stressful and more cost-effective way to resolve disputes, and it empowers parents to make their own decisions.

In Adelaide, various accredited FDR providers can assist families. If an agreement is reached, it can then be formalised into a Consent Order. If FDR is unsuccessful, the mediator will issue a certificate (a Section 60I Certificate) which allows parents to apply to the court for parenting orders. There are exceptions to the FDR requirement, such as in cases of family violence or child abuse.

What Courts Consider: The Child’s Best Interests

The paramount consideration for the Family Court when making parenting orders is the child’s best interests. The Family Law Act outlines two primary considerations and a list of additional considerations that the court must take into account:

  • Primary Considerations:

    • The benefit to the child of having a meaningful relationship with both parents.
    • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. (This consideration is given greater weight.)

  • Additional Considerations:

    • The child’s views (considering their age and maturity).
    • The nature of the relationship of the child with each parent and other significant people.
    • The extent to which each parent has fulfilled their parental responsibilities.
    • The likely effect of any changes in the child’s circumstances.
    • The practical difficulty and expense of a child spending time with each parent.
    • The capacity of each parent to provide for the child’s needs.
    • The child’s maturity, sex, lifestyle, and cultural background.
    • Any family violence involving the child or a member of the child’s family.
    • Any other fact or circumstance the court thinks is relevant.

The court will weigh these factors carefully to make an order that best serves the child’s welfare and development.

Modifying Existing Parenting Arrangements

Life circumstances change, and what was once a suitable parenting arrangement may no longer be appropriate. If there is a significant change in circumstances, parents can seek to vary an existing parenting plan or court order. If the original arrangement was an informal agreement or parenting plan, parents can simply negotiate new terms. If it was a Consent Order or court order, an application must be made to the court to vary the order.

The court will only consider varying an existing order if there has been a significant change in circumstances since the original order was made. This prevents constant relitigation of the same issues. Examples of significant changes could include a parent relocating, a child’s changing needs as they grow older, or a change in a parent’s work schedule.

How Legal Professionals Can Help in Adelaide

Navigating parenting arrangements after separation can be emotionally taxing and legally complex. Seeking advice from a Divorce Lawyer Adelaide or a Family Law Adelaide professional can provide clarity and support. Lawyers can help you understand your rights and obligations, assist in negotiations, draft parenting plans or Consent Orders, and represent you in court if necessary.

A lawyer can also help you prepare for and participate in Family Dispute Resolution, ensuring your interests and those of your children are properly represented. They can provide practical advice tailored to your specific situation in Adelaide, helping you work towards an arrangement that is stable and sustainable for your family’s future.

How long do parenting arrangements take to finalise?
The timeline for finalising parenting arrangements varies significantly depending on the method chosen. Informal agreements can be made very quickly, while court orders can take much longer due to legal processes.Generally, if parents can agree through negotiation or Family Dispute Resolution, a Consent Order might be finalised within a few months, depending on court processing times. If the matter proceeds to court, it can take anywhere from six months to over a year, or even longer in complex cases, to reach a final decision. Factors like the complexity of the issues, the level of parental cooperation, and court schedules all play a role.
Do children have a say in parenting decisions?
Yes, the Family Law Act requires the court to consider the child’s views, taking into account their age and maturity. This doesn’t mean children dictate the outcome, but their opinions are an important factor.How a child’s views are gathered can vary. For younger children, observations by family consultants might be considered. For older, more mature children, their direct wishes might be given more weight. The court aims to understand the child’s perspective without placing undue pressure on them to choose between parents.
What is shared parental responsibility?
Shared parental responsibility refers to both parents having an equal say in major long-term decisions about their children, such as education, health, and religious upbringing. It does not automatically mean equal time.The law presumes that it is in the child’s best interests for parents to have equal shared parental responsibility, unless there are concerns about family violence or child abuse. If this presumption applies, the court must then consider whether an order for equal shared care (equal time) or substantial and significant time is in the child’s best interests.
Can I relocate with my children after separation?
Relocation with children after separation is a complex issue and generally requires the consent of the other parent or a court order. If there are existing parenting orders, you typically cannot move a significant distance without agreement or court permission.If parents cannot agree on a relocation, the parent wishing to move must apply to the court for permission. The court will assess the proposed relocation based on the child’s best interests, considering factors such as the impact on the child’s relationship with the other parent, the reasons for the move, and the practicalities of new arrangements.

People Also Ask

How do I start parenting arrangements?
Many people start by discussing potential arrangements directly with the other parent. This initial conversation often focuses on what each parent believes is best for the children, considering their daily routines, school, and activities. If direct discussion proves difficult or unproductive, seeking assistance from a mediator through Family Dispute Resolution is a common next step. This can provide a structured environment for parents to negotiate and reach an agreement.
What is a Section 60I Certificate?
A Section 60I Certificate is a document issued by a Family Dispute Resolution practitioner. This certificate confirms that parents have either attended Family Dispute Resolution, attempted to attend but it wasn’t appropriate, or that one party refused to attend. It is generally required before a parent can apply to the Family Court for parenting orders, demonstrating that an attempt was made to resolve the dispute outside of court.
Can parenting orders be changed?
Parenting orders can be changed, but typically only if there has been a significant change in circumstances since the order was originally made. The court aims for stability in children’s lives, so it does not easily vary existing orders without a compelling reason. If parents agree on new arrangements, they can apply for new Consent Orders to reflect these changes. If they cannot agree, one parent may need to apply to the court for a variation, demonstrating the significant change in circumstances.
Is equal time common in Adelaide?
Whether equal time is common in Adelaide, or anywhere in Australia, depends on the specific circumstances of each family and what is deemed to be in the child’s best interests. The law presumes equal shared parental responsibility, which means both parents make major long-term decisions. However, this presumption does not automatically translate to equal time with each parent. The court will consider if equal time is practical and in the child’s best interests after assessing factors like the child’s age, school, and the parents’ ability to communicate effectively.
How much do parenting orders cost in Adelaide?
The cost of establishing parenting orders in Adelaide varies considerably based on the method used. If parents reach an agreement through negotiation or Family Dispute Resolution and apply for Consent Orders, the costs are generally lower, involving mediator fees and potentially legal fees for drafting the application. If the matter proceeds to court, costs can be significantly higher due to ongoing legal representation, court filing fees, and potential expert reports. Many people discuss this with a professional to understand the potential financial implications.
What if a parent doesn’t follow orders?
If a parent doesn’t follow existing parenting orders, it can be a source of frustration and concern. The Family Court has mechanisms to address non-compliance. Initially, parents might try to resolve the issue through communication or mediation. If non-compliance persists, an application can be made to the court to enforce the orders. The court may then make further orders, such as requiring makeup time for a child or, in more serious cases, imposing penalties on the non-complying parent.

This content is general information only and is not legal advice. It is important to seek personalized advice for your specific situation.