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Family Law: Think of the children

12 Oct 2020

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by Tiffany Joyce

When a couple decides to separate, some of the biggest decisions to be made include: what happens to the children, who they will live with, and where they will live.

Relocation is defined as a “shift of the child’s residence which affects the child’s’ relationship with his or her parents, both practically and emotionally.”

The first thing parents must consider is the child’s safety and the best interests of the child. Other things to consider include:

  • parents being primarily responsible for the welfare, development and upbringing of their children;
  • parents engaging in ongoing and cooperative consultations;
  • continuity in a child’s development and upbringing;
  • a continuing relationship with both parents and wider family;
  • preserving and strengthening a child’s identity, culture, language and religious denomination.

Parents also need to consider what compromises they can live with. Hopefully, an agreement can be reached regarding relocation, by considering these factors, without the need to attend court.

If the parents come to an agreement, they could enter into a Parenting Plan, or if they want an order that is enforceable by the court, they should file a General Consent Memorandum with the Family Court.

What happens if the parents can’t agree?

If the parents can’t reach an agreement the next step is to attend Family Dispute Resolution Mediation where both parents meet with an independent mediator who facilitates an informal and confidential discussion in the hope of reaching an agreement. This process requires consent from both parents and the cost is based on your income.

Failure to reach an agreement means they must issue proceedings with the court to try and resolve the issue. They will have needed to have completed a Parenting through Separation Course and attended Family Dispute Resolution (FDR) mediation in the past 12 months.

When the court is assessing whether to grant a relocation application it will consider the following factors:

  • the need for both parents to have a continuing relationship with their children;
  • the continuity of custodial arrangements, where relationships with wider family is to be preserved and strengthened;
  • the protection of the child’s safety, identity and culture;
  • each parent’s capacity to facilitate parent-child contact;
  • the extent and focus that each parent has in conflict;
  • the practical consequences of the relocation;
  • the implications of the children’s social and sorting commitments;
  • and, the children’s wishes.

In court, parents generally seek either a Parenting Order, or an Order to Settle a Dispute between Guardians. A Parenting Order requests the Court to make decisions about who looks after the child/children (day-to-day care), and when or where parents and others can see the children (contact).

Alternatively, an Order to Settle a Dispute between Guardians seeks the Court to make a decision about guardianship issues, which include where the children go to school, what medical treatment they will receive, what language they will learn, what religion they will follow and any changes to their name.

It doesn’t matter how an agreement relating to the care of children is reached, all agreements should consider the best interests of the children as the paramount consideration. The principles which must be considered, when determining what is in the best interests of a child, are set out in the Care of Children Act 2004.

Challenges to consider

The FDR and separation course requirements may make things hard for parents, particularly if they want a quick solution. Proceedings can be issued “without notice” if the matter is deemed urgent, but specific requirements have to be met so it is important to seek legal advice before filing without notice.

Family violence may also be a hurdle for parents wanting to issue proceedings as they may be fearful of the other parent. Taking into account the best interests of the children may be difficult for some parents, as sometimes what is in the best interests of a child may differ from what a parent wants or desires.

Money can be a big challenge as issuing proceedings in court is a costly process. You may be eligible for a grant or legal aid but you may still have to make a contribution, or pay the money back.

The cost issue is compounded by the lengthy court process. On average it takes 294 days for a dispute to be settled in the family court which can impact on the parents ability to work as they are required to take part in the difficult “cross examination” process.

Court can be an extremely emotional and draining process as well, given the time, money and effort parents put into it. At the end of the day, parents are trusting a Judge to make a decision about their children and this can be extremely stressful as the outcome is essentially out of their hands.

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