April 9, 2015

Separation and Children

When parents break-up with each other, it is a time of huge upheaval and change for each and every member of that family, both parents and children. The arrangements that might have existed before separation might not be applicable immediately after separation and in turn, the arrangements that apply in the first few weeks after separation may not be suitable for the medium and long term.

Relationships change, adult ideas, fears and perspectives change and children grow older. What might be suitable arrangements for a three and five year old in the first weeks after a traumatic and sudden separation is unlikely to be appropriate three years later, when both children are at school and the adults have, hopefully, calmed down.

Myths and Legends

There are still many “myth conceptions” about what happens to the children when their parent’s separate. Over the last few years a distressing number of men have assumed and vehemently asserted that children are “divided 50/50”. (What with – chainsaws?)

At the other extreme, I still occasionally see cases where one parent has assumed that they can simply take the children and move interstate, without the agreement of or even notifying the other party. (Those parents are in for a very rude shock.)

Many people still have the “myth conception” that children will only spend every second weekend and half of school holidays with one parent and live the rest of the time with the other parent. Once upon a time, this was standard arrangement but it can no longer be assumed. Part of being involved with your children is to also be involved with their schooling and extra curricular activities – just as many parents are before separation.

Another “myth conception” is that it is up to the children themselves to decide which parent they live with and how often they see a parent. Some people believe that there is a law that says that parents can make those decisions once they turn 12. This puts awful psychological pressure on children, who feel they have to choose between their parents.

Others think that a parent’s contact with their children depends on them paying Child support or maintenance – as though children are some sort of product or service to be purchased and sold.

Each of these “myth conceptions” fails to recognize or consider the importance to the children of their relationship with both parents.

First Principal

If you are asking a court to make an order relating to where children live, who they see or other special orders relating them, this is referred to, throughout the Family Law Act as a “parenting order”. If you are able to negotiate agreement without going to court, you also have the option of setting out the terms in a Parenting Agreement – which doesn’t need to be as formal as a court order.

The basic principal in the Australian Family Law system is that any parenting order made by a court must be “in the best interests of the child”. When you are negotiating arrangements for your children, you should also have their best interests as your guiding principle.

Once you have separated from the other parent, you are expected to put the children’s needs ahead of your own. Decisions about children should not be based on what is “fair” to the other party, if that does not accord with what is best for the children. Neither should decisions be based on any concepts of fault or desert for some perceived wrongdoing in the marriage.

Decisions about the children are about the children. They are the central focus.

So how do you or how does a court, decide what’s in the best interests of your children?

That’s the topic for my next post!

May 8, 2015

In my last post, I addressed some of the “Myths and Legends” that surround parenting and children during separation and divorce. I wrote about the legal expectation that parents, or if they are unable to agree, the Court will make decisions about parenting that are in the best interests of the children.

In this post, we look at the legal framework for deciding what is in a child’s best interests.

Primary considerations

The Family Law Act (the law governing these decisions in most cases – see my post “Breaking Up – They’re my kids!”) sets out the factors a court must take into account in deciding what is in a child’s best interests.

There are two primary considerations, which are:

1. The importance of maintaining a “meaningful relationship” (yes the law actually uses the term “meaningful relationship”!) with both parents; and
   
2. The need to protect a child from abuse, neglect or family violence.

Since 2012, the protection of children from abuse, neglect or family violence has had precedence over the need to maintain a “meaningful relationship” with both parents. Regrettably, for some time, this was not the case.

Secondary considerations

Subject to those two considerations there are then further, secondary, considerations that include : the child’s views and maturity, the nature of the relationship between the child and each parent, the attitude of the parents towards their obligations , and the capacity of each parent to foster the child’s well-being.

Although this checklist initially appears to be very academic, the considerations do in fact encompass the practicalities of a child’s life. There is also an assumption that, if possible, a child should have as little disruption to their life as possible, particularly if they have been thriving. Obviously, if there have been problems that disadvantage a child, any decision should attempt to address those.

How does the court find out?

Of course you think you know what’s best for your child – you’re the parent, right? Problem is, both parents think this. So why don’t you agree? Because you’re biased!!! You only see and hear a part of what’s going on in your children’s lives (sorry, but it’s true!)

Given this almost universal truth, the Family Law Act sets out a process by which the court can obtain independent evidence about the children’s relationship with both parties and about the children’s wishes. This process is called the “Family Report”. Typically a family report is prepared by a psychologist or social worker who sees the parents and the children across one day.

The Family Report writer will speak to each party, will generally speak to the children and will generally speak to the children in the presence of both parties. The interviews are quite intense. An experienced Family Report writer is able to make significant observations and provide a valuable opinion that both the parties and the court can rely on or challenge, as the case may be.

The Family Report writer is also heavily dependent on the court documents prepared on behalf of each party.

Your court documents are the only backgrounding and preparation that the Family Report writer will have. It is therefore essential to make sure that your evidence is properly and professionally prepared and set out before you attend the Family Report interviews.

Other important evidence relating to the children can be obtained from school reports, school attendance schedules, counsellors and even, within limits, from extended family members or friends who have a lot to do with the children. The latter is particularly significant if children have a troubled relationship with one or both of their parents.

All of this evidence then goes towards painting the picture of the children’s lives and helps to answer the question of what is in their best interests.

If you still can’t agree

All this evidence, which is typically gathered over a period of months, will usually enable an experienced Family Lawyer to help you to formulate an appropriate settlement. The vast majority of disputes about children are resolved without the court needing to hear the evidence and make a decision.

An experienced and skilful Family Lawyer will also be able to help you to present or answer the evidence and to put your best case forward, if you do have to go into court. (For more about that, see my previous posts “Going to Court”).

And remember – it’s all about the kids!

August 14, 2015

Oh dear! You want to move away and take the children with you BUT… you don’t think the other parent will agree!

You might or might not already have court orders that set out parenting arrangements. Whether you’re leaving an abusive relationship or struggling with the kids and want to move “back home” to where your family lives or you’ve re-partnered and now you are ready to be a new family – you, your kids and your new love, or you just want a fresh start in a new place are some general rules or “do’s and don’ts”.

Do’s and Don’ts

Firstly, whatever you do – don’t just “take off” with the kids (unless your or their safety is really at risk – in which case, contact the police). If you do:

• the other party is highly likely to be able to get a court order to force government agencies to disclose your whereabouts to their lawyer and an order for you to return the children to the original jurisdiction (place).
• you also expose yourself to allegations that you have both failed to consider the children’s needs for maintaining a relationship with their other parent , other relatives, school and social networks that are important to them.
• You are giving everyone, including the court, the first impression that you are placing your wants above the children’s needs. Not a good look in Family Law proceedings!
• You actually are disrupting the children and their familial and social relationships, putting them through stress that could have long lasting deleterious effects on them.

If you are fleeing and abusive relationship and have good reason to believe that you or the children are in serious danger from your ex partner, then it is a case of, “safety first”. Contact your local police who will be able to put you in contact with Domestic Violence services. Obviously, if there is a danger of violence from your former partner, (and you can prove this, or at least that your fear was genuine) this would outweigh the negatives – but you would still have to persuade the court that your actions were justified.

If you just take off, you will make it much harder to persuade a court that you can be relied upon to foster the children’s relationships with the other parent and other significant people in their lives, or that you really understand the children’s needs and best interests, therefore making it less likely that you will be permitted to permanently move with the children. ( see posts They’re My Kids! and What Are The Best Interests Of Your Children?)

So, what are some do’s?

A really good place to start is to look at the alternatives to relocation:

• Could your new partner move closer?
  
• Could your “ex” also move? great solution if it can be done
• Would an intervention order and active police assistance work to keep you safe?
• Could you leave the children with their other parent and maintain regular contact with them yourself – often a practical solution if the children are teenagers.

Canvass the alternatives and have a good reason to rebut each one.

Then work on the positives:

Where will the children live? Give as full a description of their new home as possible; the house itself; the neighbourhood; who will be living there; the employment opportunities for you (and why they’re better than now!); the children’s relationship with your new partner; financial support for the children.

Early on, provide educational options in the new location – your preference of school and why, but make it clear that you’re prepared to consult with the other parent.

How will you ensure the children maintain a strong relationship with the other parent? Consider electronic communications such as Skype, emails, telephone. If you are moving too far away for regular weekend time with the other parent, also be prepared to concede a significant portion of the school holidays for them to spend together.

Consider proposals for the other parent to visit the children in the new location. If you get on well enough, could you truthfully say “He / She is welcome to stay with us every …” ?

How will the children maintain other important relationships – with relatives and significant friends and groups?

If you want to relocate to be with a new partner, what is the relationship between the new partner and the children? How do the children feel about moving to live with him /her. If you can have a trial period of your new partner living or at least staying with you and the children, before you move, that will help you to illustrate a positive relationship (if there isn’t one, it’s going to be very hard to convince a court that you should be allowed to move).

How has your new partner demonstrated a commitment to the relationship not just with you but also with your children? Financial assistance is a very good indicator. What are your and your new partner’s financial prospects? Don’t expect a court to allow you to take the children away from financial security to an uncertain prospect.

These are some of the main issues. However, every family is different and so it’s really important to get good quality legal advice about your particular case as early as possible. I recommend speaking to a Family Lawyer even before you start mediation (Family Dispute Resolution). I’ve seen too many cases where a client has made concessions in mediation that they later regret.

If the other parent opposes your plans to move with the children, expect a difficult, stressful and expensive legal battle. Some registries of the Federal Circuit Court have a separate “fast track” list of cases for disputes about relocation. Check with your lawyer.

Many of my comments in my early post We’re Breaking Up – First Steps – An Introduction to the Family Law System apply to this issue, so read that as well.

September 14, 2016

We have all heard the friends and family of people who’ve been involved in Family Law disputes commentating on what they believe should have been the decision about the children, how unfair the law has been to one parent or how difficult the law has made life for one parent. These comments invariably reflect the cultural views of the person making them in relation to what should be the way children are brought up and what is important for children.

This year, there have been a number of cases that highlight the difficulties of reconciling or balancing different cultural expectations and norms with the legal boundaries. One of these was the sad case of Sally Faulkiner and her attempts to get her children back from Lebanon with the ‘assistance’ of 60 Minutes. Another was the case of Lokare and Baum, reported in the Family Law cases. 

In Australian law, any decision relating to where children live, who they see or other special orders (‘parenting orders’) must ‘regard the best interests of the child as the paramount consideration’ (Family Law Act S 60CA). The values that form the context of the Family Law Act relating to children are reflected in Section 60B of the Family Law Act. That section sets out the objects of the parts of the Family Law Act that relate to children. Those objects in turn talk about the benefit of children having a meaningful relationship with both parents, protection of children, enabling children to reach their full potential, ensuring parents fulfil their responsibilities towards the children etc. (1).

These principles form the foundation of the law relating to children and are binding on Australian courts, Judges and anyone seeking the assistance of the law in Australia. (See my blog post “It’s all about the kids! – myths, legends and the first principle” and “They’re my kids! – what are the best interests of your children?” further down this page where we look at the legal framework for deciding what is in a child’s best interests.)

These objects also reflect general Australian culture as distilled through our parliament.

However, not every culture and tradition within the Australian community automatically accepts or espouses these values or gives them the same priority. In the Sally Faulkiner case, we could see the values being espoused or reflected in the Lebanese religious court system, which apparently give a much greater emphasis to the role of the father and the perceived ‘fault’ of the mother in seeking to remove the children from Lebanon. One can only wonder how Sally Faulkiner’s children are managing having been removed from their primary attachment and being unable to spend time with her. Time will tell.

Last year, in the case of Lokare and Baum (2), the Family Court had to deal with an appeal relating to a perceived conflict between the obligations of an Aboriginal father and his extended family in introducing and welcoming a young child into their particular community with the needs of that young child to feel secure and not to be removed from her primary psychological attachment (her mother) for an extended period of time.

This case was particularly interesting because it also looked at the interplay between a part of Section 60B of the Family Law Act which has, as one of the objects of the law, to ensure that a child of Aboriginal or Torres Strait Islander descent also has the right, the support, opportunity and encouragement to maintain and explore a positive appreciation of that culture. This is again reflected in Section 60CC(3)(h) in setting out how a court decides what is in a child’s best interests.

In deciding cases relating to children with parents from different backgrounds, the family law courts often have a really difficult balancing act in satisfying the cultural norms and expectations of one parent’s community as against the cultural norms and expectations of the other parent’s community or the more general community standards as expressed in Section 60B of the Family Law Act.

Very often, those expectations can be reconciled and practical outcomes achieved, provided both sides are prepared to make compromises and to act with a degree of good will.

1. Section 60B of the Family Law Act - http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60b.html

2. In the case of Lokare and Baum, the Aboriginal father of the 4½ year old child wanted to fulfil his cultural obligations by taking the child to a smoking ceremony in his country. The child had lived with her non-Aboriginal mother in Sydney since the parties separated when she was 8 months old. At first, a compromise was reached, with the first Judge who heard the case making orders that provided for the child to attend the ceremony but to travel and stay there with her mother. Orders were made that the father would pay for the mother’s travel and accommodation. Unfortunately, the father overheard and took offence at comments made by one of the mother’s lawyers and the family rivalries reignited and escalated so the father’s relatives decided that the mother was no longer welcome at the ceremony. For the child to travel to the smoking ceremony, it was expected to take 2 days’ travel by car and the ceremony itself would have extended over a number of days, so the father was proposing that a 4½ year old child, who had lived with her mother and only had limited contact with him, not stayed overnight with him since separation, would then be removed from her mother for 11 days to travel to and from and attend an important cultural event with him and his family. The case went to the full court which had to balance compliance with the objects set out in Section 60B of the Family Law Act with the paramountcy principle set out in Section 60CA of the Family Law Act. The court decided that this was not in the child’s best interests, because of the time the child would be away from her mother, to whom she had a strong primary attachment. Implicit in this decision is the knowledge that we have from social sciences as to the often long term psychological harm that can be done to a person by removing them from their primary attachment when they are very young. Therefore, it was held not to be in the child’s best interests for this to happen.