Children of separating parents face enormous anxieties and adjustments. Their family’s lives will be significantly disrupted, so to minimise the impact, resolving the future parenting arrangements for them ought to be given careful consideration.
The main focus when determining future parenting arrangements for children after separation should be the needs of the children. It is the right of children to have a significant and an ongoing relationship with both of their parents, unless it is contrary to their best interests.
The parents of children both have parental responsibility, meaning that they have the authority and responsibility for making decisions concerning the long term issues about their children. When parents seek a Court Order dealing with parenting arrangements, namely, “a parenting order”, it will usually include an order that their parents have equal shared parental responsibility for their children. In some segments of the community there is a misconception that this equates to some right of each parent to have the children in their care for an equal amount of time. In family law legislation, there is no mention of any rights of the parents.
There is no legal requirement for separating parents to obtain parenting orders to deal with the arrangements for their children. Many separating parents are able to work out between themselves what the future arrangements will be for their children, and make those arrangements work. If it is possible for these people to make their informal parenting arrangements work, then there is probably no need for them to formalise those arrangements by way of parenting orders of a Court.
For those separating parents who are having difficulty reaching agreement about the future arrangements for their children, there is a legal requirement to at least attempt to resolve the differences through mediation. The mediation process will involve one of the parents making contact with a mediation service provider. An appointment is made to see this parent, for what is commonly referred to as an “intake interview”. At this intake interview the mediator obtains information about the family and what the issue is all about. The parties will also be assessed for their suitability to participate in mediation. If assessed as suitable, the mediator will then invite the other parent to make an appointment for an intake interview. After the other parent has had an intake interview, then a joint a mediation conference is eventually scheduled.
There is a variety of different mediation service providers available in the community. These include the government funded Family Relationship Centres which provide up to 3 hours free mediation. Alternatively, private mediators also operate and provide a service.
Most parenting mediations occur without lawyers present. However, this is not a set rule, and each matter ought to be carefully assessed to consider whether it would benefit from having the parties’ lawyers present. Such situations which may warrant having lawyers present would include if there is a degree of conflict between the parties whereby they cannot communicate with one another effectively, or where the parties may need to be assisted to concentrate on the important issues.
In some cases “child inclusive” medication is appropriate. This occurs where a child consultant, usually a child and family psychologist, speaks with the children and reports back to the parents on how the child is dealing with the separation. Whether child inclusive mediation is appropriate is a matter that is assessed by mediators who work with child consultants, and may involve situations where there are older children who have specific views, or where there is an issue present which may benefit from the input of a child consultant.
If the mediation process achieves a resolution about parenting arrangements for the children, including who they will live with and the time they will spend with each parent, then the mediator will record in general terms what has been agreed upon. It is then a matter for the parties to follow up and have their lawyers draft parenting orders, to be made by consent, reflecting what has been agreed upon at mediation.
If mediation fails to resolve the issue concerning future parenting arrangements of the children, or if one party refuses to participate in the mediation process, then the mediator will issue a certificate which will entitle the parties to commence proceedings to ask a Court to determine their parenting arrangements. This is generally an option of last resort.
Before embarking upon the mediation process to deal with parenting arrangements, it is always recommended that each parent seek independent legal advice from a lawyer experienced in family law. The advice should not only cover the legal/technical aspects, but also the process involved and an assessment of what process will best suit each individual case.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. Our senior Family Lawyer is certified by the Law Society of New South Wales as an Accredited Specialist in Family Law.
Craddock Murray Neumann Lawyers on (02) 8268 4000 for friendly professional service.