Separating with kids: Who decides where they live?

When separation occurs, it is a very emotional and confusing time for many. The priority is always ensuring that the children will cope and even flourish in the new separated-parent environment.  Many people feel overwhelmed and concerned as to how, or who will help them, to make the most appropriate arrangements for the children. We can help you.

In determining the most appropriate living arrangements for the children, we can assist you to determine what is in their best interests.  Ultimately, it’s not what each parent wants, but what would be the best living arrangements for the children.

The answer to that question is different from one family to another. There is no standard contact regime. To decide what is best for your children, you need to consider what the children have previously been used to: whom has been the primary parent of the children so far? is it predominantly one parent, or both on a fairly equal basis? What are the work commitments of each parent, and how can they each be available to care for the children?  Where will each of the parents live in the long-term, ie. close to each other, or a more significant distance apart?

On a daily basis, our family team are assisting clients to talk through these questions. We assist by discussing what we think a Court may consider best for the children if a Court was required to decide. Ideally, the parents will then make efforts to try to reach agreement together about the best living arrangement for their children.  That can be done by discussing together or seeking the assistance of a mediator.  Otherwise, we can assist you to negotiate with the other parent or their solicitor.

Ultimately, the best outcome for your children is if both parents can agree on what living arrangement is best for them.  Therefore, we try to assist you to achieve this with as minimal legal intervention as possible.  Once that agreement has been reached, we can assist to prepare a Parenting Plan, or Family Court Consent Orders for you both to sign. This will give consistency moving forward, which can alleviate a lot of the weekly, or even daily, communication or even disagreement regarding when the other parent will see the children next, time and location for changeover, etc.  

All of the above refers to the best case scenario, where parents can ultimately decide together, with or without our help, the best living arrangements for the children.  We appreciate that some cases are not this straight forward. In some situations, what each parent wants are at complete polar opposites, or there are violence issues, and it is clear to us that intervention is needed critically. If this is your situation, and the children are in an arrangement that either puts them at danger or is not satisfying their best interests, then you will need legal assistance to make a change.

The Family Law Rules 2004 state that we must attempt mediation prior to making an application to the Courts.  We have a variety of options for you to book a mediation, with varying costs and time frames.  If that does not work, or if your case is too urgent to wait for a mediation to happen, then we will make an Application to either the Family Court or the Federal Circuit Court, to seek the Orders that you do believe are in the best interests of your children.  When preparing your documents, we consider that careful drafting is paramount.  This is your opportunity to tell your story, so there is a fine balance between us giving plenty of detail, but still concise and readable.

Once the court process starts, you and your ex can still reach agreement along the way.  However, before the Judge makes crucial decisions regarding the best interests of your children, he or she is likely to order that you attend an s11F consultation at the Court, or a Family Report.  Both options involve face to face contact with a psychologist, who specialises in understanding families and trying to assist in determining the best interest of the children.

Prior to your appointment, the psychologist will have read your Affidavit, and hence, understand your story. Likewise, they will read your ex’s Affidavit, which often tells a very different story to your own.  The psychologist will have a private interview with just you, a private interview with your ex, and then if they deem it to be appropriate, they will have a chat with each of your children, either separately or together. They may also watch the interaction between each parent and the children.  These interviews assist the psychologist greatly to get an understanding of the family dynamics, what works well, what doesn’t work well.  They will prepare a detailed report which will ultimately make recommendations for the Judge as to what they would consider being the living arrangements that would best satisfy the children’s best interests.

That Report is of great assistance to the Court, if the Judge has to determine your case. Also, it can be of assistance to both parties’ solicitors, to take on board the recommendations of the Report, and try to reach agreement in your case.

The Court can also be assisted, when determining the best interest of children, from external information including: psychologist or counsellor reports, doctors reports, police records, or the Department of Health and Human Services. We can also seek Court Orders for appropriate interventions or additional information: such as psychiatric assessments, drug tests, or professional supervised visits. It is important that your solicitor is organized, conscientious, and has a good understanding of how to make sure that this information is all legally provided to the Court to be considered as evidence.  

We hope that this general information has been of assistance. Obviously, every case is unique, and advice is given on a case by case basis.  If you need assistance, whether it be to help to finalise what is a relatively amicable arrangement, or you need help to fight a court case to protect your children and ensure their safety, then we have many experienced, conscientious and understanding solicitors that can assist you.  Please contact our Warragul office on (03) 5623 5166 or our Drouin office on (03) 5625 2544.

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