Getting Some Perspective on Parenting Disputes

When you are faced with separation during the initial weeks, you could be forgiven for thinking that the road forward will inevitably be difficult.

In our view, considering the big picture of how the majority of separated couples resolve how their children live with and spend time with each parent, can provide insight and information about how you might approach your parenting dispute.

In a report undertaken by the Australian Institute of Family Studies in October 2019, they considered multiple large-scale studies over a period of 10 years relating to post separation parenting outcomes as a result of a national survey of separated parents.

It is pleasing to note that only about 3% of separated parents use the Family Court as their main pathway to secure agreed parenting arrangements. The majority of these families experienced circumstances of family violence, child safety concerns and other matters of complexity.

According to this report, approximately 97% of separated parents do not go to Court to settle agreed parenting arrangements. Although of this category, 16% utilised family dispute resolution services or lawyers to reach agreement, without Court assistance.

The research found that there was a considerable variation in the ways that families manage the care of their children after separation, with factors such as the children’s age and the working commitments of each parent playing a significant role in the outcome of agreed arrangements.

The most common arrangement after 18 months of separation (as reported in the Survey of Separated Parents 2014) was for the children to live with the mother for at least 66% of nights per year.

The next most common arrangement (18% of cases) is for children to spend all of their nights with the mother and see their father during daytime only.

In 21% of cases, the time the children spent with each parent was substantially shared between each parent with the majority of these arrangements involving more time with the mother.

Equal time arrangements occurred in less than 10% of cases.

It was found to be fairly uncommon (i.e., 9% of cases) for children to have no contact with their father.

These outcomes indicate what appears to be a trend (at the time) regarding the arrangements that work best for parents and children. It is a common error to consider that children should spend time with each parent in a week about arrangement simply because it is equal.

In reality, and with the benefit of considering psychological research regarding how children cope after their parents separate, many family court matters provide for children to live primarily with one parent and spend time with another, particularly where there are young children involved and/or other complicating factors.

Whilst there are understandable frustrations for the parent spending less time with their child, it is important to recognise that the best end result should be in the best interests of the child as its primary focus.

Case precedent suggests that stability of arrangements will promote the best outcomes for children, which may involve the child or children living primarily with one parent and spending time with the other.

The report went on to consider the outcomes secured by parties who attend Court, including consideration of the ways that Court orders are made, including:

  1. Adjudicated matters – these are matters that proceed to trial where a judge considers the evidence and produces a decision. Generally, these matters involve complex facts and evidentiary matters to be weighed.
  2. Consent after litigation – this includes matters that reach agreement before they reach a final hearing or even during a final hearing. These matters are also likely to have complex fact patterns.
  3. Orders by consent – this is the most common arrangement where parents reach agreement (either on their own, or with the assistance of a family dispute resolution practitioner or lawyer) and then make application for consent orders.

In adjudicated matters:

  • orders for both parents to share parental responsibility were least likely to be made when the matter was decided by a Judge. Orders made for a mother to have sole parental responsibility were made for 45% of cases and fathers were granted orders for sole parental responsibility in 11% of cases.
  • 64% of orders were made for children to live mainly with the mother and spend less than 35% of nights with their father. 17% of orders were made for shared arrangements.

For matters that reached agreement after litigation had commenced:

  • orders for shared parental responsibility applied to approximately 94% of cases;
  • 75% of orders provided for children to live primarily with the mother and spend less than 35% of nights with their father. 15% of children were involved in shared time arrangements, and 10% of children live primarily with their father and spent less than 35% of nights with their mother.

In relation to matters where arrangements are agreed by consent, without need for litigation:

  • shared parental responsibility outcomes were most common;
  • 64% of orders provided for children to live primarily with the mother with approximately 33% of matters providing for a shared time arrangement.
  • Arrangements for children to live primarily with their father by consent and spend less than 35% of nights with their mother applied to approximately 4% of matters.

In our opinion, when negotiating practical orders to define the way parents make important long-term decisions and how much time the children spend with each parent, it is important to consider the real life implications of the arrangements being sought by each parent, and how they coincide with everyday responsibilities and issues such as working commitments and income.

Further, children are often seen to benefit from an arrangement that limits conflict and maximises stability.

Dimond Family Lawyers work hard to provide our clients with practical advice to promote the best possible outcomes.

If you have recently separated, or if you are currently experiencing difficulties in implementing arrangements regarding your children with your ex-partner, call our experienced team now to discuss the options available to you.

Source:  Australian Institute of Studies “Parenting arrangements after separation” October 2019

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