Michelle T. Felderhof

Separating is hard to do, but once you have made the decision to end your relationship there are a number of things you need to consider.

Firstly, you and your ex-partner will need to determine where your children will live and how they will spend time with the other parent.  There is a presumption at law that parents have equal shared responsibility of the children but this is not the same thing as equal time.  That is, equal shared parental responsibility does not mean that the children live equally between two households.  Equal shared parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.  This can include decisions to be made about schooling or medical procedures or religion.  It generally means all of the long term issues that affect your children.

In determining where your children will live and how they will spend time with the other parent, your children's best interests are the paramount consideration.  Effectively, parents have no rights and your children have all of the rights.  Your children have the right to have a meaningful relationship with both parents and they have the right to be protected from harm.  Further, the Courts will consider your children's views, the nature of the relationship the children have with both parents, the extent to which parents have taken (or failed to take) opportunities to spend time with their children, to communicate with the children and to participate in decisions that need to be made for the children.  Other considerations include where the children will sleep - will the children have their own room and own bed?  How will the children get to school?  Who will supervise the children when the parent is not available?  These are just some of the considerations the Court will take into account when determining where your children should live and how they will spend time with the other parent.

You should always put your agreement in writing.  The most simplest way to do that is by way of a Parenting Plan.  A Parenting Plan is an Agreement that you both sign and date and which includes the terms of how you will co-parent.  For example, it can detail where your children will live and how the children will spend time with the other parent.  It can include Christmas, school holidays, Easter, Birthday's, Mother's Day, Father's Day or any other special days.  It can also include how the children will communicate with the other parent and when they will communicate.  It can specify how the children will travel to the other parent and which parent will be responsible for that travel.  However, a Parenting Plan is not enforceable by the Courts and is generally only useful when two parties are in complete agreement and there is little (if any) likelihood that a dispute will arise in the future. 

Consent Orders are enforceable by the Courts and it can provide both you and your ex-partner of some certainty when it comes to enforcing the Agreement you have reached.  Breaching an Order of the Court has significant penalties and may include a term of imprisonment. 

Before you even consider taking your ex partner to court you will both need to have attended a Family Dispute Resolution Conference with an Accredited Family Dispute Resolution Practitioner. This is commonly known as mediation.  The mediator is an impartial third party who facilitates negotiations between the parties and assists them in reaching a agreement without going to court.  Generally, the parties equally share the cost of the mediation which can last anywhere from 4 - 8 hours, depending on the issues that need to be resolved.

If you and your ex-partner are unable to reach a negotiated agreement, the Family Dispute Resolution Practitioner may issue you with a certificate which states you have made an genuine effort to resolve your dispute.  This certificate will be required to be produced when you make an application to the Court to determine your matter for you.

If you are concerned that your ex partner will abduct the children, then you will need to act urgently and obtain an Order from the Court  preventing the children from being removed from the State, Territory or from Australia.

If you are concerned that your ex partner has abducted the children and you do not know where they are, then you must act urgently.

For an urgent telephone consultation please enter your details below.