Divorce and separation: an emotional roller-coaster
Separation occurs when a person advises their partner that they no longer wish to be in the same relationship and want to separate.
The date a person makes this intention to separate clear to their partner becomes the date of separation for the purposes of divorce and family law proceedings.
Separation is not easy to deal with, you often become overwhelmed with emotions trying to deal with the separation whilst thinking of how it will impact your life.
Immediately after separation, the following questions run through your mind:
- What should you do about the children? Who should they live with and how much time should they spend with their father/mother?
- Should you leave the family home or should you change the locks to keep your spouse out?
- What about my bank accounts, we have a joint bank account, should I withdraw all the money and hide it so that my spouse cannot access it?
The first thing that you need to do is consider whether you are in a position emotionally to answer these questions? If children are involved, are you confident that you will make a decision that is in their best interests and not yours?
The question of what is in the children’s best interests is a subjective test.
Often, a parent would act on emotions thinking that it’s in their children’s best interests to place restraints on their partner’s parental rights by having conditions on the time they spend with their children post separation. This conduct stops their children from having a meaningful relationship with both of their parents.
Preventing children from having a meaningful relationship with both their parents is contrary to the provisions of the Family Law Act 1975 (Cth). The whole purpose of the parenting provisions under the Act is to promote the involvement of both parents in their children’s lives.
The objects in Section 60B (Part VII) of the Act confirm that the best interests of the children are met by:
- Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children. “
These objects are also focused on the children spending regular time with both of the parents. These principles are contained in section 60B(2)
- Children have the right to know and be cared for by both parents..; and
- Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- Parents should agree about future parenting of their children; and
- Children have a right to enjoy their culture..”.
If you are involved in a situation where you have just separated, it is recommended that you immediately seek legal advice on what constitutes the best interests for your children, as well as what your property rights are before making any decisions based on emotions.
For a more detailed discussion please do not hesitate to contact me by phone on (02) 9283 5599 or email [email protected]