We have separated – what happens now, and where should our child/ren live?
In Australia, the terms that we use to describe living arrangements for children following parental separation have changed since the first version of the Family Law Act 1975.
You may occasionally still hear people referring to terms such as “custody” and “access” or, less frequently, “residence” and “contact”.
Each of these terms have, in the past, been part of the Family Law Act, and have been used to describe the amount and type of time that a child would spend with each parent following a separation.
The Act has now changed to place more emphasis on better describing how and where a child lives. The terminology therefore now refers to:
- children “living with” their parents; and/or
- children “spending time and communicating” with their parents.
The change in terminology is designed to ensure that parents focus on the child’s day to day lived experience. The intent is that both parents will be able to jointly engage in the daily responsibilities and care associated with raising their child/ren.
The issue of a child’s living arrangements will be dictated by a number of factors specific to the particular family structure involved. These will include how the family operated before separation, their financial situation, what the child is accustomed to, and the viability and desirability of any change to this.
Depending on the family structure, and how this has been impacted by the separation, other issues to consider may include:
- considering where children are to live, having regard to any schooling or holiday requirements;
- whether either parent seeks to move some distance away from their former partner, and what this will mean for the children’s relationships with each parent. This is also known as a relocation matter;
- which parent will make decisions about the children’s extra-curricular activities, schools, health and social lives;
- how children communicate with the parent not residing in their primary home; and
- how the children are to be financially supported.
The law places great emphasis on parents engaging in negotiations to resolve these issues, either directly or via private resolution processes.
Family lawyers can be of valuable assistance in these negotiations, suggesting options and guiding parties through the resolution process.
In the event that parents are unable to reach agreement about what is best for their child/ren, the family law Courts have the power to make parenting decisions.
Often, in order to ensure that a decision is made in the child’s best interest, the Court will seek the advice of an independent psychologist or child development expert.
The expert’s role is to assess the current state of the child’s relationship with each parent, and their role in the family. They will then provide professional guidance as to what type of living arrangement will best benefit the child going forward.