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    Mother’s Day After Separation – Will it ever be the same again?

    May 5, 2021 9:24:50 AM

    Mother’s Day is all about celebrating motherhood and mothers in our families. It is about celebrating the woman who raised you and shaped you into the person you are today. It is often the day when children remind their mothers of their love and appreciation for their efforts and shower them with beautiful gifts such as flowers and cards with messages such as “I love you mum” and “you’re the best mum ever!”.

    But what happens when families have separated? Unfortunately, mothers do not have an automatic right to spend time with their children on Mother’s Day (the same goes for Fathers on Father’s Day).

    How Mother’s Day is celebrated during a separation, or even after a separation, usually depends on the age of your children and whether Parenting Orders or arrangements provide for the children spending time with you on this special day.

    What if there is no parenting arrangement in place?

    If there are no Parenting Orders or arrangements in place and the children are living with you, then there is very little impediment to the children spending time with you on Mother’s Day or on any other special occasion.

    The difficulty arises when the children are residing with the other parent. Without Parenting Orders, it can be very difficult for the other parent to push for time with the children as officials such as the Police are often reluctant to get involved in these circumstances.

    If you are not the parent that the children live with ordinarily but would like to spend Mother’s Day with the children, we recommend starting this conversation sooner rather than later. If you and your former spouse are having difficulty reaching an agreement about the arrangements for the children, you may wish to try mediation. Mediation is a process whereby a neutral third person helps people in conflict to negotiate a mutually acceptable agreement. Organisations such as Relationships Australia offer mediation services. Alternatively, there are private mediators who specialise in family law matters who may be able to assist.

    Sadly, there are some cases where mediation may not be appropriate, and lawyer assisted negotiation may be required. If you would like to resolve parenting matters with your former spouse but are unsure about whether mediation is suitable in your case, we recommend you contact us to arrange a free first conference with one of our experienced Family Lawyers.

    We have reached an agreement, is there anything we should we do?

    If you and your former spouse have reached an agreement regarding the arrangements for your children, then there are two ways you can document that agreement:

    Option one: Parenting Plan

    A Parenting Plan is a written agreement between parents which covers the practical issues of parental responsibility. It will often include details around decision making regarding children’s care in such areas as parenting style, living arrangements, finances, education, health and religion. These documents are often written by parents in good will with a shared commitment to your children.

    Parenting Plans are not formal documents and do not require the Court’s approval. As such, they are not legally binding or enforceable, however it may have legal implications if future parenting proceedings are initiated.

    Option two: Parenting Consent Orders

    Similar to Parenting Plans, Parenting Consent Orders also cover the practical issues of parental responsibility. The significant difference between the two is that Parenting Consent Orders do require the Court’s approval and once made are legally binding on the parents. This means that there may be legal ramifications if a parent fails to comply or follow the Parenting Orders.

    We recommend that you obtain legal advice before committing to either.

    What do I do if we are unable to reach an agreement?

    As mentioned above, if you and your former spouse are unable to reach an agreement between yourselves regarding the arrangements for your children (including those arrangements for special occasions such as Mother’s Day) then alternative dispute resolution, such as mediation might be of some assistance. Parties can attend mediation with or without lawyers depending on the circumstances of their separation. Sometimes, lawyer assisted mediation is necessary is cases where there is high parental conflict.

    If an agreement is still not forthcoming, then your only other alternative may be to commence proceedings in a Family Law Court seeking Parenting Orders.

    How will the Court decide?

    In deciding whether to make a particular Parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

    In determining what is in the child's best interests, the Court must consider the following:

    1. the benefit to the child of having a meaningful relationship with both of the child's parents; and
    2. the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

    Although these are considered primary considerations, the Court must give greater weight to the need to protect the child.

    There are also additional considerations the Court must apply including:

    1. any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
    2. the nature of the relationship of the child with:
      i. each of the child's parents; and
      ii. other persons (including any grandparent or other relative of the child);
    3. the extent to which each of the child's parents has taken, or failed to take, the opportunity:
      i. to participate in making decisions about major long-term issues in relation to the child; and
      ii. to spend time with the child; and
      iii. to communicate with the child;
    4. the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
    5. the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
      i. either of his or her parents; or
      ii. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
    6. the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
    7. the capacity of:
      i. each of the child's parents; and
      ii. any other person (including any grandparent or other relative of the child);
    8. to provide for the needs of the child, including emotional and intellectual needs; the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
    9. if the child is an Aboriginal child or a Torres Strait Islander child:
      i. the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
      ii. the likely impact any proposed parenting order under this Part will have on that right;
    10. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
    11. any family violence involving the child or a member of the child's family;
    12. if a family violence order applies, or has applied, to the child or a member of the child's family-any relevant inferences that can be drawn from the order, taking into account the following:
      i. the nature of the order;
      ii. the circumstances in which the order was made;
      iii. any evidence admitted in proceedings for the order;
      iv. any findings made by the court in, or in proceedings for, the order;
      v. any other relevant matter;
    13. whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
    14. any other fact or circumstance that the court thinks is relevant.

    If you would like assistance in your parenting matter, please contact us on (02) 9688 6023.


    If you have any questions in relation to the information provided in this article, or would like to discuss your situation with one of our experienced family lawyers, please contact us on (02) 9688 6023 or via frank@franklaw.com.au.

    This is not legal advice. 

    Monique Loveday

    Written by Monique Loveday