Family Law: The “Divided-Life”
Over 46,000 divorces were registered in Australia in 2016, and of those almost 50% of the separating couples had children under the age of 18. Government statistics show that in 2012-2013 only 31% of children spent time with the parent they didn’t live with on a weekly basis. That means that 69% of children did not meet with their non-resident parent even once a week. Moreover, 51% of children spend no nights at their non-resident parent’s house.
With Father’s Day fast approaching, it may be useful to know a little bit about how parenting arrangements work and how to determine what is really best for your child.
Issues of residential and parenting arrangements, including when and where children should meet with each of their parents after separation, can be dealt with in a number of ways as described below.
If a couple can come to an agreement themselves, they can choose to create a parenting plan. A parenting plan is a written agreement as to parenting arrangements which is signed by both parties. Although this type of agreement quicker than going through the Court, it is important to keep in mind that it is not legally binding.
Minute of consent orders
A minute of consent orders is a written agreement that is approved by the Court. Consent orders can be used when a couple is able to come to an agreement between themselves, but they want the Court’s approval so that it will become legally binding.
Parenting orders come about either through an application for consent orders as set out above or when the Court makes decisions as to parenting arrangements. These decisions will always be based first and foremost on the best interests of the child. Only 5% of parenting disputes are resolved this way in Western Australia, as couples need to show they have made a genuine attempt to come to an agreement before the Court will step in. The couple must have undergone family dispute resolution, unless there are issues of violence or abuse or other limited reasons where case exemptions can be given.
Parenting arrangements, no matter what form they take, can and often do include matters such as:
- who the child will live with;
- how much time the child will spend with each parent and other people (e.g. grandparents);
- how the child will communicate with the parent they are not living or spending time with;
- how the parents will make major life decisions for the child; and
- any other aspect of the care, welfare or development of the child.
In regards to major life decisions, medical, religious, cultural and educational matters are included, however, decisions such as what the child will eat and wear on a day-to-day basis are not deemed major decisions.
Parenting arrangements also often include who the child will spend time with on special occasions such as birthdays, Christmas and Mothers’ and Fathers’ Day. For example, the arrangement might set out that the child is to spend time with their father between 10am and 5pm on Fathers’ Day, even if Fathers’ Day falls on a Sunday that the child usually spends with their mother.
Although parenting arrangements all have a legal undertone and some are even legally binding, there is more to parenting after a separation than just your legal rights and responsibilities. Just as a separation can be extremely stressful and potentially upsetting for the couple themselves, children can also suffer detrimental mental health issues when their parents separate.
In his book “Shared Care or Divided Lives?” Dr. Phil Watts talks about the difference for children between parents who cooperate after separation and parents who make no attempt to keep life consistent for their child.
After taking inspiration from Dr. Watts, we have outlined 5 practical tips for parenting after a separation:
- Sort out parenting arrangements as soon as possible
A separation is going to be tough for everyone involved, and you may feel inclined to put off sorting out and finalising parenting arrangements because you simply can’t bear to face it, or maybe it seems quite daunting or confusing. You may be unsure of your rights and worried that you’ll get ‘ripped off’. But the sooner you and your ex-partner sort out parenting arrangements, the better it will be for you, your partner and your child.
“Your son and daughter will only ever have one first day at school, one marriage reception, and one graduation ceremony. They may get critically ill and be in hospital. They may have a serious car accident. In other words, life happens. Sooner or later you need to get it sorted out with your ex-partner so you can both be there when your child really needs you.” – Dr. Phil Watts
- Allow your child to be a child
Dr. Watt describes the importance of not overburdening your child with too much responsibility for their age and level of development. After a separation you may feel inclined to say things like, “I’m going to miss you so much when you go to Daddy’s house,” but no matter how much this may be true, it can be harmful for your child because this can make them feel like they’re responsible for your sadness or loneliness when they are with their other parent. Your child is used to receiving comfort from you, so when the roles become reversed at too young of an age it can overburden them and make them feel like it’s their job to make you happy.
- If abuse is involved, get specialist help
If you or your child have experienced, or are experiencing, abuse of any kind from your ex-partner, it is crucial that you tread carefully. Talking to a child about abuse is a specialist skill and Dr. Watts warns that if it’s done incorrectly it can actually do further harm to the child. It probably goes without saying that children who are regularly exposed to violence can develop serious mental health issues, and for this reason it is important that you seek both legal and psychological support for your child and yourself if you find yourself in this situation.
- Maintain a positive image of your ex-partner
This one might be tough, but it’s important. You simply can’t spend the whole time you have with your child making damaging comments about your ex-partner, in fact, you should never do this. Remember that although you may not love your ex-partner anymore, your child still does. Dr. Watts gives a number of suggestions for this point, including that you encourage your child to visit their other parent and that when they come home you should ask them how their stay was and what they got up to. Another important suggestion is that you don’t introduce new partners to your child too soon after separation. If you remember nothing else, however, it should be not to talk negatively about your ex-partner in the presence of your child.
- Love your child more than you hate your ex-partner
Dr. Watts advises that you should treat co-parenting like a business partnership and forget about whatever you despise about your ex-partner. The very fact that you have separated demonstrates that you don’t see eye to eye on a number of matters, but hopefully something you can agree on is that you both love your child. If each parent has largely differing values and beliefs when it comes to parenting, this is when your child will experience the divided life. Transitioning from one parent’s house to another is probably going to be hard enough for your child as it is, but if moving from one house to the next also means a whole new set of rules and a completely different lifestyle, it’s going to be confusing and frustrating for your child to get the hang of. For example, if bedtime is 8:00pm at mum’s house and 9:30pm at dad’s house your child will find it really hard to get into a good rhythm. Remember – you don’t have to like each other, you just need to be able to cooperate in order to do what’s best for your child.
Sorting our parenting arrangements can be stressful, confusing and upsetting but it is such an important step for you and your child. As demonstrated in this article, there are both legal and psychological factors to consider and therefore it’s a good idea to seek professional support from both of those fields. If you’re in the process of sorting out parenting arrangements and need some assistance to make sure you get the best outcome for you and your child, please do not hesitate to contact Lynn & Brown Lawyers. Lynn & Brown has a number of highly knowledgeable family lawyers who would be happy to help, and we have a number of contracts with psychologists who can work with you or your child.
About the authors:
This article has been co-authored by Chelsea McNeill and Jacqueline Brown at Lynn & Brown Lawyers. Chelsea is in her third year of studying Law at Murdoch University. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.