Separating with a partner can be a difficult process, and it is made much more complex where there is a child involved.
Sometimes parenting disputes cannot be resolved amicably.
It is important, in such times, to understand the family law principles when it comes to parenting and some of the legal jargon that comes with it.
Who is a Parent?
In Australian law, a parent is not only the biological or adoptive parents but also, in the case of artificial conception, includes any de facto partner of the biological parent at the time of artificial conception so long as the de facto partner (also known in law as the ‘other intended parent’) consents to the procedure. A biological parent (such as a donor) is not a parent if they are not the ‘other intended parent’ or the biological mother.
This means in a same-sex couple relationship, if one partner undergoes artificial conception, and the other partner agrees to the artificial conception while they are in a de facto relationship, then both partners are parents. The sperm donor, in this scenario, is not a parent.
What is Parental Responsibility and who has Parental Responsibility?
Parental responsibility means all the duties, powers, responsibility, and authority that parents usually have in relation to their child.
Each of the parents of a child has parental responsibility for a child. Until a court decides otherwise, each parent is presumed to have the same parental responsibility for the child.
Best interest of the child.
The best interest of the child is the paramount consideration. This includes the child being able to benefit from having a meaningful relationship with both of the child’s parents and to protect the child from being subjected to or exposed to physical or psychological harm.
As much as possible, the child should also be protected from fighting between the parents.
My ex-partner is withholding my child from me.
Ideally, parents should co-operate as much as possible to ensure that the child has an opportunity to spend time with both parents. However sometimes communication breaks down during separation, or a parent may believe that there are legitimate reasons for withholding a child from another parent.
Both parents have a presumption of parental responsibility. If someone is withholding your child from you, you should seek legal advice.
I am concerned that my ex-partner is leaving with my child.
If you have concerns that your ex-partner is relocating within Australia or overseas, you should seek legal advice. There are orders which can be made to prevent the child from leaving Australia and measures which can be taken against the child being relocated within Australia.
If your ex-partner has already taken the child, you should seek legal advice. There are ‘recovery orders’ which allow the Australian Federal Police to search for and recover the child. If the child has been taken overseas, there are similar orders which can be made and are effective for certain countries and jurisdictions who are signatories to the Hague Convention.
How do I make permanent arrangements?
It is good if you and your ex-partner are able to communicate and discuss future plans for the child. You may want to draft a ‘Parenting Plan’ or enter into ‘Consent Orders’. There are advantages and disadvantages to both and you should seek legal advice.
However if you and your partner are not able to agree on parenting arrangements, or you have serious concerns about the other parent, it may be necessary to make an application to the court.