Children and Parenting

IT’S ALL ABOUT THE KIDS! – MYTHS, LEGENDS AND THE FIRST PRINCIPLE

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!

Separation Divorce and Children –
A New Family Law?

Are you separated or separating from your spouse or partner? What about the children? Who will they live with, when will they see their other parent and who’s going to make decisions affecting their welfare?

On 6th of May 2024, changes to the Family Law Act 1975 came into effect in Australia. These change the guidelines and principles to be followed by parents and courts having to make decisions about children, whose parents have separated.

The starting point continues to be that “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.”

However, the context and stated objects of the law have changed. Previously, the stated objectives in the Family Law Act were to ensure that children had “meaningful involvement” with both parents, as far as was possible, to protect children from harm, to ensure that children received adequate and proper parenting and to ensure that parents fulfilled their duties etc concerning the children.

In many ways, the old law emphasised the role of parents. This was often [mis]interpreted as giving parents rights over their children. There were a series of legal presumptions including that, if parents were to have joint responsibility for the children, then equal time or if that was not practicable, substantial time had to be seriously considered. Again this was often [wrongly] interpreted by some as there being a “50/50” rule for how much time each parent had with the children.

Too often, we would see cases that were really about the parents and not about the children.

The new provisions set out two objectives that place children at the very centre of consideration. These objectives, set out in the new S60B, are:

“(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.”

No mention at all of parents, further emphasising the centrality of the children.

There is also a new checklist of factors that a court must take into account (and which parents trying to reach agreement should take into account) in determining the best interests of each child in each particular case. Set out in the new S60CC(2), these are:

a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child

b) Any views expressed by the child;

c) the developmental, psychological, emotional and cultural needs of the child;

d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

f) anything else that is relevant to the particular circumstances of the child.

The need to protect children from family violence is also highlighted in the new provisions.

The court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family.

Although there are fewer references to parents and parental rights, many of the factors set out in the legislation will self-evidently involve consideration of the parents, in most families. For example, in most cases it would be argued that living with one parent and spending significant time with the other parent, or some other form of shared arrangement, would:

• promote the safety of the child,

• accord with the child's wishes,

• best meet the developmental, psychological, emotional and cultural needs of the child

And that

• the parents have the capacity to provide for those needs,

• it would benefit the child to maintain those relationships.

The difference is that, in the rare cases where it is questionable whether one or either parent is a suitable carer for the child, the legislation no longer starts with presumptions that parents are best but starts with the need to ensure the safety and best interests of the child.

It is refreshing to see the parliament putting the emphasis on children and their protection, safety and wellbeing at the centre of decision-making about them. However, while these changes are legally significant, it is not clear how much they will change the results in many cases.

It is the pathway to reaching decisions will be very different.

Photo by Priscilla Du Preez 🇨🇦 on Unsplash.

Moving Away – Relocation of Children

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 an 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.

Balancing Act -
Cultural Norms, Obligations and Family Law

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.

THE POWER OF THE FAMILY REPORT

November 14, 2019

In a Family Law dispute about children, one of the most important items of evidence is the Family Report. So how the lawyers and parties handle the family report may change the outcome of the case.

It has recently been reported that a Perth psychologist appointed by the Family Court had been found guilty of professional misconduct for writing an official report labelling the father’s personality style as “psychopathic” without a clinical diagnosis.(1) According to the article, the family report was prepared somewhere around 2012, the psychologist stepped down as a Family Court expert in 2017 and has been has been dealt with by his professional body in 2019. The article states that the father has only recently been reunited with his son.

Family Reports are ordered by the courts in disputes over children. If the matter is urgent and the Judge feels that he or she needs guidance before making short term orders, a report will be ordered under S11F of the Family Law Act. The more usual report is an in-depth report prepared pursuant to S62G of the Family Law Act.

The Court can ask a family consultant (the family report writer) to prepare “a report on such matters relevant to the proceedings as the Court thinks desirable”. So if a party considers something important, they or their legal team must consider what submissions to put to the court in relation to the order for a Family Report.

Usually, once the Judge has ordered a report, the Court Registry will appoint the psychologist or social worker to prepare the report. The report writer then contacts each of the parties and their lawyers requesting copies of that party’s court documents. It’s really important to ensure that the report writer receives those documents before the interviews so they can familiarise themselves with each party’s version of events and objectives before the interviews take place.

The report writer then arranges for the parties and the children to meet for interviews. Generally the parent with whom the children live is the first interviewed followed by the non-resident parent. These interviews take place on one day. Both parents are observed with the children and, if the children are old enough, the report writer will also interview them to try to ascertain the children’s wishes and views on the case.

The report generally sets out what the family report writer has observed and their conclusions based on the interviews and each party’s court documents. Most report writers will also make recommendations to the Court, which should be (but are not always) based on their observations.

It is absolutely not the purpose of the Family Report to decide the case nor is it the role of the Family Report writer to make findings about disputed facts. However, the report writer may comment on inconsistencies between what they have read and what a party has said. For example, if a party says something different to what they have said on affidavit, that is likely to be noted in the Family Report and can be significant.

The Family Report is often the only opportunity that the Judge will have to hear the views of the children from an independent source or to obtain independent evidence as to the relationship between the children and each of the parties. For this reason, Judges often place a lot of reliance on the observations of the Family Report writer and will often find the report writer’s recommendations compelling.

In the vast majority of cases there is only one Family Report writer. It is therefore really important that you and your lawyer read through the Family Report very carefully. Remember, your lawyer is not present at the interviews so you must bring any factual errors in the report to your lawyer’s attention. There are sometimes apparently minor details that the report writer gets confused about or gets wrong which can be significant, so it is worthwhile spending several hours working through the report both alone and with your lawyer so that your Barrister can be properly briefed and prepared to cross-examine the report writer.

I also advise against giving into the temptation to jump to the end of the report and just read the recommendations. I find the report writer’s observations of the parties and the children far more important than their conclusions. In the past, I have had Family Reports in which the recommendations are simply not sustained by the written observations in the report and my Barrister has successfully cross-examined the report writer to the point where they have changed their recommendations in the witness box once our Barrister probed their observations and suggested alternative interpretations or explanations.

The Family Report can also be important in resolving cases by acting as a reality check against other evidence in the case. For example, I’ve had cases where my client was adamant that the children were frightened of the other party but the Family Report indicated very close verbal and non-verbal behaviours which indicated a great deal of affection and trust on the children’s part. I’ve had other cases where the report writer has alerted us to issues that my client had so far not acknowledged or been aware of. So be ready to review your own beliefs in light of the Family Report.

I don’t know what happened with the case reported by the ABC, beyond what is reported. But years of experience have taught me that it is vitally important that parties and their lawyers are thoroughly across the contents of the Family Report so that it can be the vital evidence it’s intended to be. (2)

(1) See article by Rebecca Turner ABC News here.

(2) For general information about Family Reports, see the Family Court and Federal Circuit Court Publication “Family Reports” available here.

FAMILY LAW AND COVID-19 PARENTING DISPUTES

September 7, 2020

If you are living in Victoria, so much of your life will have changed during the COVID-19 pandemic. These changes might include the breakdown of your relationship. Or perhaps the arrangements with your ex about the children no longer work because of other changes caused by COVID-19, such as children schooling at home. Or perhaps supervision arrangements can no longer be implemented. Perhaps you have concerns about going back to the old arrangements, as lockdown is relaxed.

The first step is to try to reach some agreement with your former partner about the children. If you feel uneasy speaking face to face or by phone, send a text message or email. Always keep your side of communications polite and businesslike, if you can’t be friendly. Sarcasm and bullying might help you feel better in the short term but are unlikely to help you to reach agreement or foster an amicable relationship in the long term.

Even if you are more than usually stressed, try to keep conflict and negativity away from your children, because it can cause emotional and psychological stress to them. (The Family Court has a useful brochure about the impact of conflict on children here.)

Remember, the law expects you to put the best interests of the children above any other considerations. It doesn’t matter whether you think your ex “doesn’t deserve” the children – what’s best for the children? Try to see things from their perspective. (More generally, see my blogs from April and May 2015: It's all about the kids - myths legends and the first principle and They're my kids - what are the best interests for your children.)

If you can reach agreement – well done! – but document the agreement. This can be done either by way of Parenting Agreement (which must be in writing, dated and signed by both parties) or by Consent Orders, if you want it to be legally binding and enforceable.

When it comes to the Family Law system, some things are the same but there are also some big differences in the way we do things. The Chief Justice of the Family Court has issued a statement about the Court’s expectations and operations here.

If you and your former partner can't reach agreement about the children, then, excepting limited circumstances, you are still expected to try Family Dispute Resolution before going to Court. Some of the Family Dispute Resolution services have also been impacted by COVID-19 and may also have changed their practices; the most usual one is that they now conduct mediations via telephone instead of face to face.

You need to make a genuine effort to reach agreement in Family Dispute Resolution but if you can't, then you need to ask the Family Dispute Resolution practitioner for a certificate under section 60I of the Family Law Act, so that you can then issue court proceedings.

None of this happens quickly, so the more diligent you are about pursuing Family Dispute Resolution, the more likely you are to resolve the dispute early or issue court proceedings because the dispute can't be resolved via mediation.

There are some circumstances where Family Dispute Resolution is not appropriate: these include cases where there is an imminent risk to the safety of the child or some other person, where urgent action is required or where there is evidence of family violence, such as to make the matter unsuitable for Family Dispute Resolution. They are also cases where the Family Dispute Resolution provider might themselves make a judgement that the matter is not suitable for Family Dispute Resolution and so provide the certificate under section 60I.

If you have been separated for some time and already have a Court Order, you should try to comply with the Court Order as far as is practicable. If you are unable to comply with the orders because of COVID-19, then you should try to make arrangements that ensure that the children still stay in communication with the other parent as far as possible, for example by using Skype, FaceTime, Zoom or one of the other video conferencing services. Remember, children have a much more immediate sense of time than adults do so they will be really hurting if they can't see the other parent at the usual times. Children don't “get” delays in time because of the pandemic the way adults do.

If the dispute has arisen directly because of COVID-19 and it is urgent, the Family Law Courts have established a special COVID-19 list. This list enables you to take court action without going through Family Dispute Resolution and with some simplified procedures, provided your matter is urgent. The COVID-19 list is run by the Court Registrars. They will look at your application and decide whether it fits the criteria. If it does not, then they will transfer it to the normal court lists. This may mean that you have to try Family Dispute Resolution but, if your matter is borderline, then it might be worth your while in trying to get into that list.

Like any matter involving the courts, try to consult an experienced Family Lawyer early, even if just to get advice about your options, the processes and how best to present your case.

Just remember that, with any case, going to court is stressful, the Court's rules and procedures have to be navigated and followed and you might not get the outcome that you want.

So, if you can reach agreement with the other parent, even if that means making some compromises, it's well worth trying.