Separation and Children (Download a pdf version of this fact sheet) Ending a relationship can be stressful and confusing for everyone, particularly when children are involved. Decisions will need to be made, and arrangements put into place. One of your first considerations will be your children, and you'll feel stronger and more in control of the situation if you have the information you need on your options and legal rights. Commonly held myths Many people have strong, and at times, misguided views regarding the breakdown of relationships, especially when children are involved. Here are some examples: Children are easily damaged by family breakdown, so are better off living with both their natural parents. When parents separate, children should stay with their mother. Women often accuse men of abuse to stop them having contact with their children. Children see themselves as responsible for their parents separation. Parents who do not pay for maintenance of their children are not entitled to contact visits. And the reality... Children are neither totally fragile, nor absolutely resilient. Most children want and need contact with both parents. When parents separate, children generally live with one parent and continue to have contact with their other parent on a regular basis. While the vast majority of children of separated parents live with their mother, this is not always the case. It is rare for the courts to deny a parent contact with their children, even when violence or abuse has occurred. Instead, supervised contact may be granted so that a relationship can be maintained in a safer environment. Who should my children live with? The first question you'll have to resolve is whether your children should stay with you, their father, or someone else while you sort things out. Making a decision like this can be very confusing, especially as you may also have to weigh up other practical considerations like your financial and work situation, your children's schooling, where you plan to live, etc. You will also need to obtain legal advice. How can I help my children understand and cope with separation? Children will be affected by separation, but it is not always negative, and in some situations can be beneficial. Whatever the case, there are some things you can do to help. Talk openly with your children; involve them in decisions, where possible, and answer their questions honestly. Keep in mind your children's age and level of development. This will affect their understanding of what is happening and the way you explain the situation. Encourage your children to get support from friends who have also gone through the separation of their parents. Fostering relationships with grandparents, aunts, uncles and valued friends from both sides of the family can help maintain continuity in children's lives when their parents separate. What rights do my children have? In the eyes of the law, except in the most exceptional circumstances, children have the right to have contact with both their parents. This is not affected by the reasons for the break-up, or whether one parent is more `at fault' than the other. Where possible, it is in everyone's interests to reach agreement on arrangements for parent contact and care of the children. How do I go about making arrangements for my children? If, after weighing up all the options, you are able to reach agreement with your ex-partner about future arrangements, you may choose to have the details of your agreement drawn up into a parenting plan. The parenting plan can then be filed for approval with the Family Court or the Magistrates' Court. If agreement can't be reached, or negotiations with your partner become too difficult, it may be necessary to seek legal advice and engage the services of an approved counsellor or solicitor to draw up a parenting order. What is the difference between a parenting plan and a parenting order? Parenting Plans A parenting plan is the written agreement reached by parents setting out how children will be cared for after separation. Parenting plans cover such things as: Where your children will live Who your children will have contact with, when, and how often Where they will spend holidays and birthdays Financial support How to change the plan, and how you will both resolve disputes How decisions about education, health and religion will be made. If registered, the court can enforce a parenting plan (like a parenting order). However, if you prefer the plan to remain a private agreement between you and the other parent, it should not be registered and will have no binding effect in court Parenting Orders A judge makes a parenting order based on what is best for the child. The court can enforce this order and anyone concerned with the welfare of a child can apply for it, including either parent, a grandparent or a family member or friend. Applications for parenting orders are usually made when parents cannot agree on arrangements for their children, or when changed situations affect parenting plans or existing parenting orders. There are three types of parenting orders: Contact order - ­ Determines whom your child can see, and where they can see them, including visits, and telephone or, email. It is legally binding, and you cannot deny, or be denied, access once it has been made except in exceptional circumstances. If in doubt seek legal advice. Residence order - ­ Determines where your child will live, and with whom. Specific issues order - ­ Addresses issues that effect the day-to-day or long term care and welfare of your child, including schooling, religious upbringing, discipline or medical treatment. How does the court decide what is best for my child? The first question you'll have to resolve is whether your children should stay with you. In every case, the court's main concern is the welfare of a child. In determining what is best, the court will consider (but is not limited by) the following: Where your child is currently living, and their right to a settled, stable home environment Their right to know and have contact with both parents How your child will be affected if separated from a parent, or other people who are important to them Your child's wishes (depending on their age, maturity and understanding of the situation) How well you and the other parent are able to care and provide for them The need to protect your child from violence or harmful treatment Your child's cultural and religious background Whether an injunction or intervention order is in place. What should I do if I am worried about my child's safety? If you're worried that your child is being threatened, is in danger of being harmed in any way, or will be taken overseas without your permission, you can apply to the Family Court for an injuction or an intervention order (usually sought in the local Magistrates' Court). For more information about injunctions and intervention orders see WIRE information sheet Getting Legal Advice. Some commonly asked questions How long do Family Law cases take? It can take up to 18 months or longer for a case to get to court. 95% of cases are settled before the hearing, but if you and the other parent can't agree where your child should live, the court can make a temporary decision called an interim order. What happens if my ex-partner or I start a new relationship? A new relationship may have an impact on the arrangements that have been made for your child (including maintenance payments). Can I take my child overseas? If either parent wants to take their child overseas, both parents must sign an Australian passport application and provide permission to take the child overseas. However, either parent can apply to have a passport issued by the court. Different rules apply for overseas passports. Am I entitled to receive child support? If your children are living with you, the other parent is required to contribute towards their care and upkeep to the age of 18 (or if they are completing tertiary education or have special needs) ­ even if you start a new relationship. The Child Support Agency will calculate how much you should receive, and will collect the money for you. In some instances the Family Court will determine the level of child maintenance. For example, if there is an urgent need for child maintenance pending a Child Support Agency assessment. The amount of child support varies, and is calculated using a complex formula based on parents' income and how care is shared. Getting legal advice For information about your legal options including crimes compensation and intervention orders see WIRE information sheet Getting Legal Advice. Where do I go for help? WIRE Community legal centres Family counsellors Relationship and mediation services Family mediation centres Conflict resolution counselling Self-help and mutual support groups Legal-on-line Victoria Legal Aid Family Court Child Support Agency Women's Legal Service Contact WIRE for an up-to-date contact list of the services available: Phone 1300 134 130 for the cost of a local call, or 13 36 77 (National Relay Service for hearing impaired women) Drop in to the Women's Information Centre on the Ground Floor, Queen Victoria Women's Centre, 210 Lonsdale St, Melbourne Email us at inforequests@wire.org.au References Victoria Legal Aid publications: Do you have a legal problem? For Parents, Child's Representative November 24, 2000 You & Family Law Fourth Edition, October 2000 Child Support Legal Service October 2000 Australian Bureau of Statistics, Australian Social Trends, 1999 The production of these sheets was made possible with a grant from the Law Foundation. Every effort has been made to ensure the information contained in this sheet is accurate and current at the time of printing. However, no responsibility will be taken for the accuracy or reliability of the information, or for any loss which may arise from errors, omissions, or changes to government policy or the law.

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