Webinar Transcript: The Process of Determining Parenting Arrangements After Separation

This webinar is on the process of determining parenting arrangements after separation. A quick outline of the firm. We were established in 2004. I set up the firm at that time in the CBD, and we are Perth’s largest and leading family law firm, specialising in family law, dealing with all aspects of family law, including financial matters and parenting.

And today's webinar on parenting specifically.

Family Law Act 1975

So just a bit of outline for you. Family Law Act came in 1975. That is the act that the lawyers refer to in the court, refers to the background to it was that in 1975, as you can imagine, the roles were fairly traditional and in that time the terms that were used were guardianship and custody. And it was basically based on a father who worked full time outside the home and a mother who was at home with the children. And when parents split, which wasn't a hugely common but still occurred, the father would see the children based on half of the free time. So, every second weekend and half the school holidays, which became the sort of norm for dad's. Child support wasn't automatic, it was it was a requirement to apply to the court for child support. The amounts that were ordered were very low and then people really paid. So, it was a really difficult financial situation for a lot of parents. And the other interesting factor was that there was a section in the act that required children over the age of 14 to be consulted about arrangements and that continued to that 1983 when it was removed. But what it has done is it's created this legacy that people in the community think that once a child hits a particular age, whatever they say about where they want to be is gospel.

 And that's not entirely the truth and certainly not reflected in the legislation.

Family Law Act Reforms 2006

Fast forward 30 years. There came a time when we weren't living in the mid-70s, obviously, and fathers in particular wanted recognition that parenting had changed. Fathers were far more involved in parenting than they were 30 years earlier, but the law hadn't really moved on to that extent. They sought to remove ownership terms of guardianship and custody and replaced it with shared parental responsibility and lives with those spends time with so that there wasn't that ownership connotation. To be clear, there is no were in the law that requires a default 50 50 arrangement upon separation, and that's a really common thing that people say to me when I speak to them all. We've just gone to 50 50 because that's the law and that's not the case at all, which I will explain now.

The legislation Actually Says

This is the legislation. This is what we refer to. It's a lawyer speak and probably a bit long winded. But in simple terms, when parents separate, there's a presumption that it's in the best interest of the child for the parents to have equal shared parental responsibility for the child. And that's being equally responsible for big issues about the child changing their last name, changing their religion, moving countries, things like that. If there's any abuse or violence, then that presumption doesn't apply. So, it's not automatic if there are issues that have arisen about the safety of the child or other matters.

What it does mean is that if there is equal shared parental responsibility, the court has to consider whether it's appropriate for the child to spend equal time with each of the parents, but they must consider whether that's in their best interests and whether it's reasonably practicable. And I'll talk about what that means in a minute. So it's not an automatic equal time. It's something that must be considered. And if equal time is inappropriate, then substantial and significant time must be looked at. And the reason that comes in is that it's not appropriate in a lot of cases for dad to have Saturday, Sunday, and a couple of days on the school holidays. It just it just doesn't work with most families who have run their families in a different way. So the court said, look, substantial and significant time is really spending time that doesn't just revolve around the free time like it did in the 70s and  If we look at what that means, it means days that fall on weekends and holidays and days that do not fall on weekends or holidays, and the time allows the parents to be involved in the child's daily routine and occasions and events that are of particular significance to the child. So, this is a real clarification that both parents, whether they are fathers or mothers, should be involved in all of the important stuff with the kids.

So coming back to this reasonable practicality section, so it's not an automatic assumption that 50 50 falls into place if it's not reasonably practicable and in the early days, there was a real focus on, well, it's got to be 50 50 and let's focus on this reasonable practicality. And we look at what is what is not reasonably practical And that's things like, you know, you have a three month old baby or the parents live two hundred kilometres from each other or every single time that they see each other, the police get called or that, you know, the children have special needs or a whole range of factors that come into it that have got to be taken into account by the court. And the court's going to be able to be convinced that it's reasonably practical, practical, because sharing care involves really good communication and the ability to liaise with each other. We forgot in the book we've forgotten the sporting shoes. We need to look at all of that. So it's going to be reasonably practicable. And that, as I say, they look at the willingness of each party to facilitate that relationship and their attitudes. And they also look at the bottom, you’ll see they look at the extent in which the parent has fulfilled their obligation to maintain the child. And that's from a financial perspective, because the court also recognised that it's all very well for parents to demand to be in a child's life. But if they're not prepared to contribute financially, then that's something that has to be considered as well.


So I mentioned a little bit earlier about whether it's appropriate to have equal shared care for a three month old baby, and I think it's really important that people understand the development of children and how they're impacted by a mandate that they must go weak about. So importantly, with attachment, babies form a secure attachment with only one person, and that's the person who spends the most time caring for them. So that could be a dad, a mum, grandmother, an adopted mother. It doesn't really matter the relationship. It's simply who is there all of the time or most of the time. And they can bond or connect in a loving way with many, many other people. There are plenty of kids who go to day-care, there’s plenty of people who they grandparents look after them. But there is only one person that they're going to have that that secure attachment with.

So what happens with younger children is that they need to have that attachment and they are happy to spend time away from their secure attachment. But it's only the younger they are, the shorter the periods of time they can be away from this secure attachment. And we look at it like a circle, an ever-increasing circle so that the child will wander out for later and come back again, and then they'll go to metre and come back again. And so, as they get older, they can go further and further without being under stress. So, the court's very aware of this. And we as lawyers have to be really conscious of children's development. And in most cases, it's not appropriate for a baby to go a week about because that's a really long time for a baby. It's also a long time for them to not be with the other parent. And so, what position the court generally takes is that it would be shorter times more frequently, which really, if you think about it, it replicates what people do in their family. So, if one person's working full time and one person is at home full time with the kids, the working parent will be there in the morning. But sometimes they’re gone before the child is awake and they'll be there at night and then they'll have lots of time on the weekend with them that they don't have the seven days in a row. So, the court's really conscious about not placing undue stress on these younger children by taking them off their secure attachment.

Once they get to school age, they can cope with longer periods away. And that might be too nights and it could be up to seven nights. And their school age children who cope perfectly well, doing a week about with the parents and they're very secure and they're very settled and that's completely fine. There are other school age children who it's not ok with because they're not perhaps as mature, they have completely different households that they go to and they find it very difficult to make the transition a whole bunch of reasons. And the third group, I think, is the teenagers. And look, once kids sort of hit 13, 14, even though the legislation doesn't require that they be consulted, they generally want to know, the court wants to know, what the child thinks. Because the reality is, if you're dealing with a 15 or 16 year old and you say to them, this is what you are doing, they may simply just say, well, I'm not doing what you tell me to do. I don't want to be with my mum/stepdad, whatever it is, so that one tends to run its course.


I think the biggest thing to remember is that if you are cautious in the approach that you take with your children, the children are not going to be damaged if they have a strong bond with both parents. So, if you go slowly and build up to it and monitor it and make sure the kids are ok, the children won't suffer. But if you push the issue too quickly, it can create long standing damage and you damage that attachment and it can create problems for that child forever. And I've never met a parent who says, that's pk, I'm prepared to take the risk because I don't really care if my kid has problems later on. Every parent wants the best for their child. And so we really cautioned people to be cautious about the arrangements that they have for their children because being cautious is never going to damage the kid as much as being too, too quick with things. And bear in mind that equal shared care works best if the parents can communicate, if they live relatively close together, the children are going to be comfortable in both houses and everyone needs to be highly organised depending on your child.

If you have a particularly anxious child, it will just be a nightmare because they'll be worried about leaving things behind, did they do their homework? Did they not do their homework? If they got a sport, shoes, all of those sorts of things and every family is different. And I had a client who separated, and they subdivided a property. And one lived at the front, one lived at the back and the kids just back and forth, fairly unusual, But I think it worked really well. And it certainly work exceptionally well for the kids who are adults now, very successful and well-balanced.

Next Steps

So just before we go into questions, really the next steps from here, I really, really urge you to get legal advice before you do anything. Your next step is mediation. But if you go into mediation without understanding what your particular likely outcomes are, you're not going to know whether what's being discussed is going to be right or wrong, good, or bad. And I had a client years ago who came to me after going to mediation when the new legislation had just come in and was told by the mediator that if she went to court, it would be a 50 50, which wasn't right. And she agreed to it. And she came to see me, and we went to court, and by the time it got into the court, the court said, well, you agreed to a mediation So we're going to leave it as it is. And sadly, that case went on for many, many years. Eventually, the father didn't get to see the children because of the emotional abuse that she had been concerned about And it was just a long, unnecessary case that should never have continued, but arose because she just didn't get legal advice in the beginning.

So, once you've got the legal advice, mediation is then available. This can be privately or publicly funded. So, if you want to attend public mediation, Public mediation is an option. It's cost effective, but you don't choose your mediator and you don't choose your timing.

Private mediation, you will pay the mediator, but you will get to choose the mediator and you will have some say in the timing of it. If you're successful in mediation, you should come out with a parenting plan or a consent order which will finalise your matters as far as the children go. Remembering that parenting is a dynamic issue. So you cannot always expect that what you agree when you kids are 4 is going to work when your kids are 12. So, you need to be prepared to go back to mediation in the future or have further discussions in the future if you need to, because things change.

If you don't get an outcome at mediation, then you can consider a court application, but you need to consider it in the context of all of your circumstances because it might not be right for your family. It might not be the right time for you. There may be no advantage to you going to the court. So really, at that stage, I really urge you to discuss a strategy with your lawyer before you take action, because sometimes, you know, going to court at a particular time is not the right answer.

Questions From The Audience

And I now have some questions which I will take my best to answers as quickly as I can, and then because we started like if we have a few more questions, I'm happy to go over a bit, but otherwise we'll let you go.

So, my ex, who my daughter lives with, wants to move states with my children. What can I do?

A lot of court orders will, or agreements will provide that if anyone wants to move, they're not able to unless I get the consent of the other party. If you don't have that feature, then you need to advise the other party that you don't agree with them moving, or if you do agree, that's fine. But you need to talk about what arrangements will happen once they've moved. If you don't agree with it, you need to make an application to the court. You need to make an application for an order to stop them from moving. And effectively it will come down to them living with you here or them living with the other parent in the other place rather than whether that parent can move or not because that parent is free to do whatever they want. It's really where the child should leave. So unfortunately, unless you agree it, like everything in the family court, there's only two tracks. One is you agree to the other one is the court makes the decision for you.

How is a secure child assessed? What factors, characteristics are looked at?

My understanding is that that secure children separate well, they’re confident they're outgoing. They cope at school. They don't have anxieties. All of those things that you would expect in a secure child. And normally, if there's a big dispute in the court, an independent person can assess the children and the parents just to see, you know, what would be the best arrangements for the children. And that's done by generally a psychologist or a social scientist person who will interview everybody and provide a report to the court to provide that.

What age is considered school age, school age?

It's generally full-time school. So that would be normally pre-primary is really there's not a definite line on these things because obviously some kids are more mature than others. But I think once a child in school full time, the arrangements are slightly different.

I have a question about mental health and my wife's struggles with mental health issues and some days just won't take care of the kids. How might this pan out?

I'm assuming that the two of you are together. It would be a question of degree. So if her health was such that you were able to go to work and leave the kids with her and you weren't overly concerned about that on those days, then the court may consider that that everybody finds her parents a good enough parent, which is sometimes the standard. But if it's not if the children are not safe, then the court might consider that it's not appropriate that they live with her.

Someone has asked in relation to two girls, I think it's a typo, one is 14 out of a 17, not 20. So, the procedure.

Look, it's a tough one because it's a 17-year-old, I think will just be where they want to be. a 14-year-old need’s to have some boundaries around what they do, and it's not really entirely appropriate that they choose. It's a discussion between the parents. And if the parents can't agree, then the views of the children would be taken into account and depends what their views are. They might side with dad because he lets me go out drinking with my friends in the weekend. Well, that's not going to sway the court. But if they say, look, I want to be dead because I'm really close to him and Mum's never home or something, that would be a different situation. So, it would really depend.

Can you agree with the other party without the mediator?

And yes, you can so you gold standard is you separate, you sit down with your partner, you work out what the arrangements are going to be. You can formalise that by way of a parenting agreement, which is just something in writing that both can be signed or you can formalise it by way of getting a consent order through the court, which provides you with a court order. And there's various reasons for doing either of those things. You are always, always going to be much better off to be able to reach an agreement and comply with an agreement without involving the court. There's no question about that.

Should you always use a mediator if you can reach an agreement?

If you can reach an agreement you don't need a mediator or a mediator, it's great if you're having communication problems to teach you how to communicate with each other and just to give you some skills to do that. But if you don't need it, then you don't need a mediator.

So, I think we've reached the end now of our time and apologies again for tech issues. If anyone's got any other questions, just give the office a call. Happy to have a chat with you and we will make this recording available for everybody. So, I hope that you've got a better understanding about the parenting arrangements and the best for everybody. Thanks.