Going through a divorce or legal separation is already an overwhelmingly emotional experience. You also need to deal with negotiations regarding property settlement.
However, one of the most difficult parts of this process is trying to settle on the ideal parenting arrangements for your children.
It’s easy to get confused or feel discouraged due to unreliable myths you often hear people say about parenting arrangements and parenting orders.
To help provide some clarity, here are the 10 common myths around parenting agreements during a separation or divorce.
The mother always has more power
The Court will always prioritise what’s best for your children’s interests when it comes to deciding on who they should live with. As such, it’s wrong to assume the Court will place a bias on gender or that mothers have the upper hand in this matter.
Remember – there are no laws that state children should live primarily with the mother rather than the father after a separation.
Parenting plans are binding
Parenting plans refer to the agreements signed off by you and your former partner, but which are not submitted to the Court for approval and formalised into Consent Orders. These are not legally binding and cannot be enforced by the Court if they are breached.
Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. Therefore, serious consequences and penalties such as payment of fines, compensation, community service, or imprisonment can be ordered against either parent due to a breach.
Getting a Court Order is the solution if both parents can’t agree
You can’t go straight to Court and demand for the Judge to make an immediate Order just because you and your former partner or spouse can’t reach a compromise for your parenting matters.
There is a significant amount of time and work involved in preparing court documents, and it’s also common to experience delays for several months before your case may even be listed for the first hearing.
Unless it’s urgent or there is a real risk of harm or abuse to the children, parents must focus on a more serious attempt of mediation – making a genuine effort to reach an agreement before court proceedings can be filed.
There is no need to consult with the other parent about decisions affecting the children
If there are Parenting Orders for joint parental responsibility, you are required to consult and negotiate with your former partner or spouse when making major long-term decisions for your children. You also need to disclose important information like your children’s medical appointments, school information and travel plans.
You could be in breach if you do not comply with Parenting Orders that have been made by the Court. The other parent may file a contravention application against you, which could then have serious consequences resulting in penalties being imposed by the Court. The other parent may also apply to the Court, and be successful, in varying the existing Parenting Orders, on terms which you may not agree with.
Even if there are no Parenting Orders, the Court may still decide that you should have consulted the other parent about major long-term decisions such as schooling and education, religion, serious medical appointments or relocating with the children.
For example, if you unilaterally change the children’s school or relocate with the children so that it impedes on their relationship with the other parent, the Court may make an Order that the children be returned to their previous school or that the children be returned to live within close proximity to where they were living before.
Your children can make their own decisions about where they want to live once they turn 12 years old
Your children can express where they wish to live, but this is just one factor amongst many things the Court will take into consideration when determining the appropriate parenting arrangements for them.
The law sets no exact age at which children can decide for themselves where they want to live or stay. As such, the Court takes into account their age, maturity and reasons and understanding of the decision when considering their preferences.
Divorce applications deal with parenting arrangements
Your divorce application only deals with obtaining your divorce so that you are no longer legally married. However, it doesn’t automatically put parenting arrangements in place.
Ensuring a Parenting Order is made, either by consent or by a Judge, is the key to formalising your parenting arrangements to make them binding and enforceable.
There is nothing you can do when the other parent is bad-mouthing you
This is not true. You can actually seek orders that prevent your former partner or spouse from denigrating or insulting you or your family members or other significant persons to your children.
It’s not necessary to follow Court Orders
Serious ramifications can result from breaching Court Orders. Since the Court holds the power to issue penalties ranging from fines up to imprisonment, it is not wise for you to breach Court Orders – especially without seeking legal advice first.
A Parenting Order will override any Domestic (Family ) Violence Orders
This is not always the case. Under Australian domestic violence laws, the local Magistrates Court which deals with family violence matters must consider any existing parenting orders. Nevertheless, it does not mean that the domestic violence Courts will limit their powers so as to make Protection Orders (i.e. Domestic Violence or Family Violence Orders) that are consistent with the existing parenting ones, particularly when the safety of your children is at stake.
The local domestic violence Courts may revive, vary, discharge or suspend parenting orders.
The Family Law Courts must take into account the child’s best interests being the paramount consideration, and to the extent possible ensure the Order is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence. The Order may include safeguards the Court considers necessary for the safety of the children or persons affected by the Order.
When a Protection Order contradicts a Parenting Order, you may need to apply to the Family Law Courts to obtain a declaration that that the Parenting Order is inconsistent with an existing Family Violence Order and the Family Violence Order is invalid.
Not spending time with children means there’s no need to pay for child support
If you are the biological parent of your children, you bear the duty to maintain and provide financial support to them, regardless of whether you’re spending time with them or not. You need to offer financial assistance, even if the other parent prevents you from spending time with your children.
The amount you’ll pay is assessed and determined by the Child Support Agency based on factors such as how much overnight time each parent has the children in their care for, the earnings of each parent and the age and needs of each child.
If in doubt, always seek legal advice about parenting matters.