Australia: I have separated from my partner and we have a young child; what should I do?

Last Updated: 23 November 2011
Article by Craig Turvey

Separating from a long-term spouse or de facto partner is considered to be one of the most traumatic events a person can experience. The circumstances giving rise to the separation, which typically include infidelity, physical or emotional abuse, or the partners simply growing apart, can have a profound effect on the reactions of both partners.

Unfortunately, children are regularly caught in the middle of a separation between hurting parents. Children often feel they are to blame for the breakdown in their parent's relationship and, as the research shows, children do not have the emotional intelligence or maturity to cope well with acrimonious separations.

Parents are usually aware that it is damaging to their child for them to denigrate the other parent or make comments that could have a negative impact on that parent's relationship with the child.

Notwithstanding this, it is very common to come across matters where a parent has said to a child words to the effect of, 'I would like to see you more, but I'm not allowed to' or, 'We are going to lose our house because your mother/father won't let me keep it.'

Such comments, while they may be cathartic for the parents, will at best upset the children and at worst may severely damage their relationship with a particular parent.

Remain child focused

We advise our clients about the importance of remaining child focused, even in the face of criticism or poor behaviour from the other parent. This advice can include:

  • maintaining a positive front to the child that, regardless of the separation, their parents still love them and they will both be actively involved in the child's activities;
  • refraining from making any negative or derogatory comments about the other parent in front of the child, irrespective of the parent's feelings;
  • remaining calm and relaxed in dealing with the other parent when the child is present, for example, during changeovers; and
  • trying to maintain the child's pre-separation routine as best they can, including the child's attendance at any activities they enjoy.

Clients often find it difficult to behave in a way they know is appropriate when the other parent is making negative comments about them to the child and undermining their relationship.

Understandably, it is easy to get caught up in a 'tit for tat' slanging match when parents feel they are on the defensive. However, the social science research is clear that children are likely to perform poorly at school and have an increased chance of mental health problems in separated families where the parents are highly uncooperative and conflict is ongoing.

The unfortunate reality is that it is not possible to control the behaviour of the other parent. Parents must therefore ensure that irrespective of the other parent's indiscretions, they are able to provide their child with a healthy and stable environment, free from conflict, while the child is in their care.

Parents should consider a number of factors when discussing the time the child will spend with each of them, including the age of the child, the specific needs of the child, the parent's capacity to supervise and attend to the child's needs, and whether any proposed arrangements are practical, to name but a few. 

Parents often confuse their desire to spend more time with their child with this being in the best interests of the child. It is often not appropriate for a child to spend an equal amount of time with each parent due to the child's developmental needs, for instance, it is not usually recommended that infants spend any significant block period of time away from their primary carer.

How are arrangements for a child determined?

Each child is unique and different. There is no 'one size fits all' arrangement that is appropriate for all children of a particular age or developmental stage.

The approach of the Family Law Courts when determining children's arrangements is mandated by Part VII of the Family Law Act 1975 (Cth).

The courts will make orders in the best interests of the child by reviewing the primary considerations, being the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm, abuse, neglect or family violence, as well as considering a plethora of additional factors pursuant to section 60CC(3) of the Family Law Act.

A common misconception is the belief that an equal time arrangement is the most likely outcome of a court-ordered decision. Recent research shows that this is simply not the case.

Ultimately, the court is not required to make orders which suit the parents or are 'fair' for either or both of them. For example, the court may order that one party is responsible for the majority of the transportation duties because the other parent is unreliable.

Seek advice

Given the complexity of children's matters, we strongly recommend that separated parents speak with an experienced family lawyer at an early stage to discuss the best approach to their particular circumstances and a range of likely outcomes if the matter was litigated.

If there are issues involving physical, sexual or emotional abuse of a child, then it is critical for parents to seek legal advice as soon as possible.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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