After separation both parties continue to have parental responsibility for the decisions relating to the children. Generally, this decision making power relates to long term decisions with each parent retaining autonomy for the day to day decisions whilst the children are in their care.
As a general rule, when negotiating, parents will always purport to have regard for the children’s best interests. In a legal sense the children’s best interests are dictated by Section 60CC of the Family Law Act which encourages a Court (or parents when they are negotiating) to consider a range of aspects of the parental/child relationship and circumstances of prospective parenting arrangements in general.
These include: –
- The benefit of the children having a meaningful relationship with both parents;
- The need to protect the children from abuse, neglect or family violence;
- The children’s views;
- The relationships the children have with each of their parents and other persons and the nature of those relationships;
- The extent to which the parents have taken into account the opportunity to participate in their children’s lives;
- The extent to which the children’s parents have fulfilled their obligations to maintain the children;
- The likely effect of any change of circumstances on the children’s lives;
- The practical difficulty and expense of children spending time with each parent;
- The capacity of each of the children’s parents and any other person of relevance;
- The maturity, sex, lifestyle and background of each the children’s parents;
- Whether the children are of Aboriginal or Torres Strait Islanders and their right to enjoy that heritage and culture;
- The attitudes to parenthood exhibited by the parents;
- Any family violence considerations.
Generally, if parties can come to a consensus as to what are in the children’s best interests they will enter into a Parenting Plan or Consent Orders.
A Parenting Plan is a non-binding agreement although it will be taken into account in the event that any further litigation ensues. It is a document that is reduced to writing and signed by the parents.
Parenting Plans are often useful when the parents desire flexibility without the potential of contravention Court Orders by trying to achieve that flexibility.
Consent Orders occur and are enforceable by the Court by further litigation.
Generally, both documents contemplate similar issues with the three of the main ones being: –
- The allocation of parental responsibility;
- The allocation that each party spend time with the children; and
- Any specific issues which arise from specific circumstances.
There are further qualifications upon the children’s best interests which are outside the scope of this article. For further information, contact a member of O’Neill Family Law on 07 4690 1700.