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property settlement considerations: children and separation


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

10 Things about children to consider when separating

  1. Staying in the home - It is often said to be beneficial to children to be kept in familiar surroundings when parents are going through a separation. For this reason it can be argued that there is an advantage to the parent staying in the home on any dispute. This advantage is not large and should be weighed against the damage that can be done to children by both parents refusing to leave the home and exposing the children to continual disagreements.
  2. Alternate accommodation - If a decision is made to leave the family home and you would like to have the children live with you or stay with you overnight from time-to-time the alternate accommodation you choose can have a significant impact upon the viability of that proposal. The alternate accommodation should have sufficient bedrooms and beds, it needs to be in an environment that is safe for children, its proximity to school and other places that your children go is important and if possible it should be reasonably near the other parent to facilitate an ongoing relationship with that other parent. The Court will look to how ‘child focused’ each of the parents are and choice of accommodation with the children in mind is often a good indicator for the Court of how child focused each of the parents are.
  3. Your work - Your work and what it means realistically for your relationship with your children needs to be carefully considered. It serves little purpose to you or your children to be able to negotiate or win in Court an arrangement that provides generous time for you to spend with your children, if you can not maintain that arrangement. You need to consider the age of your children and their needs at the same time as your work schedule when formulating proposals for your children. There is little sense in proposing shared care of very young children unless your working routine and the level of support available to care for the children while your working is insufficient. Equally it makes little sense to ask for your children to spend half of their school holidays with you (usually 6-7 weeks per calendar year) when you do not have that much leave from work available to you (usually 4 weeks per calendar year).
  4. What do you want? - It is difficult for us or the Court to assist you in coming up with a suitable arrangement for you and your children when you have not given consideration to what it is you want. Certainly it is our role to advice you as to what may be available to you, however, the way that we are best able to assist you is for you to be clear as to what you would like us to achieve. We will then be able to tell you whether or not we are able to achieve that result for you or may be able to suggest something similar to meet your needs.
  5. How significant is the way you conduct yourself now? - The way you conduct yourself throughout the separation may at any time come up in evidence if your dispute proceeds to a Court hearing. As far as is possible you should consider, when dealing with your ex-partner, whether or not you would be happy for a Judge to see you conducting yourself in that way. It is also of significance that the amount of time you are seeking to spend with your children, or allowing your ex-partner to spend with your children in the short term is consistent with your long term proposal. It is viewed dimly by the Court for a parent to say I have no problem with my children spending significant time with my ex-partner in the future, but I am not prepared to allow them to spend any time with the children now. Equally if you would like to spend significant amounts of time with your children in the future that view is not consistent with only spending a few hours a week with them or a refusing to pay child support for them in the short term. Finally, if your ex-partner has been the primary carer for the children and the children are very young it can be advantageous to spend significant amounts of time with the children unsupervised or have them overnight on a unsupervised basis with you prior to separation. The reason for this is simple. If, while you were still in a relationship with your ex-partner, they allowed you to care for the children for significant periods of time, including overnight, they can not suggest to the Court you are incapable of caring for the children in that way after separation. This point should not be underestimated.
  6. How quickly should I act? - There are many factors the Court considers when looking at interim arrangements for children. We will be able to discuss those with you or you can find further information on our website in relation to how the Court determines what is in the children’s best interests. It is however, very important that you are conscious of the impact of any delay in you taking action. If you have delayed in taking action in relation to parenting arrangements for children the Court may be concerned that the children have become well settled since your separation and fallen into a routine that should not be distributed again until the case is finally resolved. Therefore, if you are not happy with the arrangements for your children upon separating it is important that you take steps promptly before the children become settled into an unacceptable routine.
  7. What will your weekly/fortnightly routine be? - Arrangements for children tend to operate on what can be described as having 3 layers. The foundation layer being either a weekly or fortnightly routine for the children. You should give considerations to what your regular weekly or fortnightly routine will be, allowing for both mid-week and weekend time with each parent. It can often be helpful to plot out in a diagram to see where the children will be.
  8. What will the school holiday routine be? - Children usually have 12-13 weeks of school holidays throughout the year. Most working parents usually parents have 4 weeks of annual leave. You should give careful consideration as to what the routine will be throughout the school holidays. Which of the school holidays will the children spend with you and which will they spend with your ex-partner? This arrangement forms the second layer.
  9. What will happen on special occasions? - There are five regular special occasions that occur throughout the year that are often, but not necessarily, provided for in arrangements for children of separated parents. Those occasions are Christmas, Easter, Children’s birthdays, Mother’s Day and Father’s Day. Consideration should be given as to how each of these days should be spent or shared between the parents. Some other cultures or many have additional or different days. Christmas and Easter are usually shared if the parents live close enough together to make this possible. If they do not live close enough together to make sharing those days possible they are usually spent with the children on an alternate basis. For children’s birthdays consideration needs to be given as to what arrangements will be if that day falls on a school day and if that day falls on a non school day. In relation to Mother’s Day and Father’s Day commonsense usually prevails as to where the children spend time on those days.
  10. Get some advice from us - Separation, particularly involving children, is a very emotional time. Often people in the middle of the situation do not have clear insight in relation to all of the issues confronting them and in some cases controlling ex-partners will still exert inappropriate influence over the other. We can help you make sure you recognise all of the issues confronting you and help you through these difficult times. For a no obligation free discussion about your situation please do not hesitate to contact us.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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