6

Your parenting negotiations

The family law system as it relates to your parenting arrangements can be a frightening and confusing place. It’s a world of strange jargon and at stake are the most important people in the world to you—your children—and those stakes are the highest they’ll ever be.

We’ve talked in Chapter 5 about having a game plan for what your best negotiated outcome would be, and what your worst negotiated outcome would be. This chapter provides more information on the choices you’re going to have to make—and be warned, there’s a lot to it. If stuff in this chapter doesn’t apply to you, feel free to skip ahead, because some of it is heavy going.

And remember: its family law, not family war. You will be co-parenting with your ex for years to come. Don’t let yourself get into a position where things become completely toxic if you can possibly help it. Some things aren’t forgivable—and persecuting your ex over your children to the fullest extent of the law is one of those things. Unless you plan on having separate birthdays and weddings for your children, and separate christenings and the like for your grandchildren, tread carefully, no matter how angry you are. All you can hope is that your ex will extend you the same courtesy. Be the Sane Parent.

‘Lives with’ and ‘spends time with’ and other lawyer gobbledegook

First up, let’s get the basic terminology right.

In Australia, ‘custody’ is now referred to as who the child ‘lives with’, access or contact is who the child ‘spends time with’ and ‘guardianship’ is now ‘parental responsibility’. These terms are different again in state child protection courts. The change of terminology in the Family Law Act was to get away from the idea that one parent controlled a child and permitted the other parent to see them. Kids aren’t possessions, after all, so it is helpful to have terminology that doesn’t treat them like they are objects to be passed around.

If children are spending relatively long periods of time with both parents, then it is usual to have orders saying that they live with both parents. Even if the periods with both parents are not completely equal, it may be a comfort for the children to know that they live with both parents, rather than live with one parent and visit the other.

It is extremely important that child-focused language is used when you are discussing your children. You must refer to the children as ‘our children’ not ‘my children’ where possible. For example, say ‘I want the best outcome for our children, which is why I believe XYZ’. Using language that includes your children’s other parent is very important, and the courts have made adverse comments about parents who use language that demonstrates that they see the children as ‘theirs’ and theirs alone.

Self-representing in the family law system

Many people choose to represent themselves in the family law system. Figures suggest that in more than half of all cases, either one or both parties are self-represented. It’s easy to understand why—many people don’t quite qualify for Legal Aid and the cost of lawyers is, sadly, prohibitive for many. This is very unfair and upsetting.

Lawyers like to say that anyone who represents themselves has a fool for a client. This isn’t true. There’s a huge amount of information available online about running your own family law matter, especially if it’s relatively simple and straightforward, but you must take care not to fall into a rabbit warren of internet crazies pushing an agenda.

There’s also the option of not wholly self-representing, but asking your lawyer to allow you to do as much as possible of the grunt work on your matter to keep costs down. This can be a really good halfway position.

Most lawyers are semi-decent people who don’t particularly want to stiff single parents, and if yours won’t at least discuss with you how you can work together to reduce costs as much as possible, get a new lawyer.

What sorts of orders can the courts make in relation to children?

Before we get too far into this chapter, let’s take a brief look at the types of orders the courts can make in relation to children, following the separation of their parents.

First up, as we’ve already discussed, the court can make orders relating to who the child lives with, and who the child spends time with. These orders can also include grandparents or other significant people in a child’s life.

Case study—Alethia

Alethia was the grandmother of Charlie. Charlie’s parents were George and Anna. Alethia was George’s mother.

For four years, since Charlie was six months old, Alethia looked after him two days a week. When George and Anna separated, Anna decided that she didn’t want Alethia to care for Charlie anymore. Although it took many months, the Federal Circuit Court eventually ordered that Charlie spend two afternoons per week with Alethia, with Alethia picking Charlie up from school and dropping him back to Anna’s home by 6 p.m.

The courts can also make orders relating to:

• who the child communicates with and when/how the child communicates with that person

• parental responsibility (which we’ll discuss later on)

• granting sole parental responsibility over certain issues (such as medical decisions, which we’ll talk more about later on)

• injunctions (which is where the court orders a party to stop doing something, such as using a different name for a child, which, again, we’ll go into more detail about in this chapter)

• authorising schools, daycare centres, extracurricular activity providers and medical professionals to provide information and documents to each parent

• compulsory mediation between parents if a dispute arises about the orders (unless a matter is urgent)

• child maintenance for a child who is not covered by the DHS.

It’s worth pointing out that the family law courts are horribly underfunded, and that this leads to delays and frustrations with the system.

If you can sort out your issues with your ex without having to go to court, you will all be better off for it both mentally and financially. The family law courts should be for only the most complex, difficult matters, and generally they are.

The best interests of the children

When you’re in the family law system, you will hear the phrase ‘in the best interests of the children’ over and over again. Legally, it’s the paramount consideration of the judge, as mandated by the Family Law Act 1975.

But what does ‘the best interests of the children’ mean?

It means that the family law system must ensure that any decision the judge makes is in the best interests of the children. We’ve put this up the front of the chapter because it’s the most important aspect of understanding how decisions are made if your matter goes to court, but also to show you the principles that you should keep in mind before it gets to that point, so you can hopefully avoid it.

The Family Law Act sets out factors that the judge must take into account when considering whether to make an order or not, and those factors include the following primary considerations:

Primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents.	Sometimes, very, very rarely, a court will find that there simply is no benefit to the child of having a relationship with a parent. This is very uncommon and usually follows abuse or neglect or a finding of ‘unacceptable risk’ of abuse, neglect or exposure to family violence. Usually the court will find there is a benefit to the child of having a meaningful relationship with both parents, and will look at whether the arrangements will make the relationships meaningful into the future.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.	This consideration is now given more weight than whether the relationship will be meaningful. A child has the right to be safe and a court may need evidence from criminal histories, or clinical notes from a doctor or hospital, a family report writer or psychiatrist on this point. If you hold a fear that a child is not safe, then you must seek urgent legal advice.
Secondary considerations
Any views of the child/ren.	This is stuff like how old the children are, how emphatic their views are and how much they understand what those views mean to them. Just be careful with this one; children usually love both parents and will usually tell both parents that they want to live with them—kids generally want to live with both parents all the time and want both parents to just get on with it and stop bothering them with stupid questions.
Nature of the child’s relationship with both parents, with their grandparents, their siblings, step-siblings etc.	As much as you may hate this, your children probably love both parents and their grandparents (and their siblings—whatever form their siblings take: step-siblings, half-siblings. Kids choose their family based on who they love, not necessarily who’s biologically related to them).
The extent to which each parent has taken the opportunity to actually parent.	This can be a tricky one. If during the relationship it was convenient for one parent to work all the time and one parent to do the parenting, it can be very upsetting to find that the previously absent parent is suddenly trying to be the parent of the year, especially when you have always done the hard work like the school run, the interminable meetings and appointments with the doctors/teachers/coaches/speech therapists. It is natural to be suspicious of the sudden reversal. Equally, it can be upsetting to suddenly find that your kids are growing up and you hardly know them—this tends to put the importance of that job you actually hate into perspective. Separation, no matter who initiated it, generally comes with a huge re-evaluation of priorities.
The extent to which the parents have actually paid for the kids.	Let’s be honest, kids are expensive little things and a court is unlikely to be massively sympathetic to someone who will not pay child support.
The likely effect of change on the child.	This counts especially if there is going to be a separation from parents, siblings, stepsiblings, grandparents. For example, the likely effect of the proposed arrangements on a child could be that the child is going to go from living primarily with Mum to living with both parents. Or it could be that the child is going to go from living with both parents in Adelaide to living with Dad in Sydney. What effect will this have on the child and how will you both work to minimise the effect on the child?
The practical difficulties and expense with respect to the children seeing and communicating with both parents 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.	This factor is most relevant when a relocation away from a parent is being proposed. Australians are mobile and our land is vast. Cases where a parent proposes to move to Brisbane from Sydney, or to Perth from Canberra are very common. Even if the move is by consent, the registrar will want to see in your application for consent orders form how you have agreed to make sure the kids still see and communicate with their other parents and extended family.
The capacity of both parents to provide for the needs of the child, including emotional and intellectual needs.	Sometimes a parent simply does not have the capacity to parent, whether because of an intellectual disability or because they are in jail or affected by drugs and alcohol, and this can be tragic. It is something the court needs to know about.
The maturity, sex, lifestyle and background of the child and the child’s parents and any characteristics of the child that the court thinks is relevant.	It is important that a child be able to fully participate in their life, including in their sports, their activities such as dance and drama, their culture and their religion, and that they are able to hang out with their friends. A court is unlikely to be sympathetic to someone who says that they want shared care but is unwilling to take the child to their dance recital if the child loves to dance. And, thankfully, long gone are the days where a mother repartnering with another woman was something the court had to worry about (check out the decision of the court in ‘In the Marriage of L’,* and the unbelievable eight questions that the court thought were appropriate to ask—such as ‘whether a homosexual parent would show the same love and responsibility as a heterosexual parent’).
If the child is an Aboriginal or Torres Strait Islander child, then the court must consider how the arrangements will make sure the child’s right to enjoy that culture with other people who share that culture is protected.	For Aboriginal and Torres Strait Islander children, maintaining their cultural ties is an important consideration.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.	Generally both parents have been good, attentive parents to the best of their abilities, given the roles taken on during the relationship. Occasionally a parent will not have been so into parenting and it can be tempting to consider that a sudden interest in being the parent of the year has been spurred by a DHS assessment or by you repartnering. This may well be the case, but it does not necessarily mean that the sudden interest is not genuine, or more importantly, in your child’s best interest. On the other hand, a parent who has a history of making very bad choices will have to work pretty hard to convince a court that they will start meeting the responsibilities of parenthood. Regularly returning dirty urinalysis results is unlikely to convince a judge that you can do it.
Any family violence and family violence orders made.	This is important, as if there has been family violence and/or a family violence order made and depending on the circumstances around the order being made, then the court has to consider how the proposed arrangements fit in with the primary consideration of any need to protect the child.
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.	This is also known as ‘if we make these orders, are we all going to be back in court again next month?’
Any other factors the court can think of.	It’s really quite involved. But the idea behind the Family Law Act is to, as far as possible, ensure: ‘that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children’.**

* ‘In the Marriage of L’ (1983) FLC 91-353 www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1983/20.html.

** The Family Law Act 1975.

In non-lawyer talk, this means that children must have every opportunity to be cared for by both parents, if this is in the children’s best interests. In Australian family law, there is the presumption that parents will have equal shared parental responsibility for their children,⁴³ but this does not mean there’s a presumption that parents will ‘get’ equal time.

Parental responsibility—in relation to a child, means all the duties, powers, responsibilities and authority that, by law, parents have in relation to children.⁴⁴

Notice how that definition does not mention ‘rights’ at all? In family law matters, parents do not have rights, children have rights.

Shared parental responsibility means that parents jointly make decisions about major long-term issues regarding the children.

Major long-term issues—issues of the care, welfare and development of a child of a long-term nature include (but are not limited to):

• the child’s education (both current and future)

• the child’s religious and cultural upbringing

• the child’s health

• the child’s name

• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

For example, a parent’s decision to enter a relationship with a new partner and for their child to form a relationship with the new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.45

It also doesn’t mean that the kids will necessarily live 50 per cent of the time with Dad, and 50 per cent of the time with Mum (this is known as ‘shared care’ or ‘equal parenting time’). In the event of a dispute over that, which can’t be resolved by the parents alone, the court will consider the best interests of the children, and the practicality of any orders, before making a decision. The High Court in MRR v. GR ruled that the family law courts have to consider the practicality of shared care. It’s not the case that the court will order that Mum must live in a caravan park in a remote mining town where she’s unable to get a job because she and Dad moved there before they split, and Dad now wants shared care. ⁴⁶

What is a parenting plan?

A parenting plan is a document that records an agreement between parents relating to the care of and arrangements for their children post-separation.

They are generally drafted by parents together, sometimes with the help of a lawyer or a mediator, and are best suited to quite amicable separations where the parents can still work together for the benefit of the kids. As we mentioned earlier in this chapter, in family law, we don’t talk about ‘custody’ anymore, but, rather, we talk about ‘contact’ between parents.

A parenting plan can include such things as:

• Who the children will live with, and when they will spend time with each of their parents (contact hours).

• Who will drop the children off to school and who will pick them up.

• An undertaking that school uniforms must be washed and lunchboxes emptied during contact weekends.

• Where the children will spend special days such as Christmas and birthdays, including the times that they will be dropped off and picked up and by whom (and see Chapter 8 for more information on holidays).

• Whether a parent will be given the opportunity to look after the children if the other parent can’t during their allotted time—this is known as the first right of refusal to care, and generally relates to overnight absences by a parent, and can get tricky if a step-parent is routinely caring for a child in place of a parent.

• How decisions to enrol the children in extracurricular activities (such as maths tutoring, ballet classes or weekend sports) will be made.

• How major decisions relating to health, education, religion and their last names will be made between the parents. (Note: decisions such as when to give a child cough syrup do not constitute a medical decision. This is a parenting decision that should be made by the parent who is caring for the child—see more on medical disputes further on.)

• How decisions on body-altering procedures such as tattoos or body piercing (including ear-piercing) will be made.

• Where the children will live, and the circumstances in which they can move.

• How finances will be handled, including:

– who pays for birthday presents for the children’s friends

– who pays pocket money

– who pays for the teacher’s end-of-year present

– who pays the tooth fairy, and when do you stop

– who pays the school fees

– who pays for school excursions, camps and uniforms

– who pays for the children’s birthday parties, and whether they will be held jointly with both parents present or separately with one parent on a year-about schedule

– who pays for tutoring and music lessons and dance classes

– who pays for the tech—the iPhones, the iPads, the compulsory school laptop

– who pays when the iPhone is dropped down the toilet or smashed, or the laptop is broken or left on a sports field, or the power cord is left on the train

– who pays for pharmacy products, such as nit treatments (endless, endless nit treatments)

– who pays for sports equipment like basketball boots, mouthguards, dance costumes and tennis racquets

– who pays for the formal dresses and tux hire, corsages and entry tickets to school formals and dinners

– who pays for the dentist, orthodontist and other specialists, and the gap for the doctor

– who pays for lunch orders

– who pays child support payments and how much.

• When the parents can ring or FaceTime the children and how long for, and on what specific number the child can be contacted on (disputes over whether calls can be made to mobile telephones or to home landlines are not unheard of).

• What happens if one or both of the parents die.

• How changeovers will be handled (see later in this chapter for more on changeovers).

• Where changeovers will occur.

• The role of grandparents and other significant people in the lives of the children, from ‘both sides’ of the family.

• And a range of other matters, including when the plan will be renegotiated as the children grow and their needs change.

As you’ll appreciate, there is an enormous amount of information needed for an ironclad parenting plan that picks up on all the issues that can arise in raising kids. It’s almost impossible to cover everything, but you can make life easier by working through the list above. It won’t always work—we know one bloke who won’t pay for his kid’s nit treatments because it’s ‘not a pharmaceutical product but a therapeutic product’.

Relationships Australia has an excellent online resource that allows parents to draft a parenting plan together without the need for lawyers. You can find it at: www.relationships.org.au/relationship-advice/publications/pdfs/share-the-care-parenting-plan.

What are consent orders?

Consent orders are legally binding orders made by the Family Court or Federal Circuit Court. They are arrangements relating to your children that you and your ex have agreed to, just like a parenting plan (and include the same considerations as in the list above), but they have the added protections of being legally binding (in other words, they are enforceable by the Family Court or the Federal Circuit Court).

Of course, they will generally be drafted by a lawyer, and are much more expensive than a parenting plan, but they are brilliant if you think your ex won’t comply with a parenting plan (or has shown that they won’t).

Both parties must get independent legal advice (this means advice given to you by a solicitor who hasn’t also advised your ex) before signing the orders. Relatively simple orders drafted by a lawyer will cost about $5000.

If you breach the orders without a reason, your ex can seek a ‘contravention order’, which can have very serious penalties, particularly if you’re a repeat offender. You can be ordered to pay a fine, pay your ex’s legal costs, attend parenting programs, or even, in very serious cases, go to prison.

Contravention—when a court finds a party has not followed a court order (including consent orders), that party is in contravention of (broken the terms of) the order. There are penalties that apply to contraventions of a court order, which can range from a fine to, possibly, imprisonment.

The court can also find that a parent had a reasonable excuse for breaching the orders.

Reasonable excuse—a judge may find that someone has a reasonable excuse for breaching parenting orders if the person did not understand them, or the person breached the orders because it was necessary to protect the health or safety of a person (whether that person was the person breaching the orders or the child, or someone else entirely). The key word here is ‘reasonable’, and what might feel reasonable in the middle of a heated argument may not feel so reasonable in the cold hard light of a courtroom when confronted by an angry judge. Get legal advice before taking matters into your own hands.

Which one do I need—parenting plan or consent orders?

If there’s been infidelity, violence or any kind of abusive behaviour between the parents, it can be much harder to negotiate a parenting plan together. Parenting plans are best suited to situations where the parents are still reasonably amicable, and can discuss things like what happens when one of you gets a new partner, without wanting to set fire to one another’s belongings.

If you’re not very amicable and are still in the anger stage of grief, or either parent has shown a great reluctance to follow through with the agreements reached in the plan, consent orders are a good option. They can actually work to reduce conflict by having a very clear, legally binding set of rules that each parent must follow (within reason).

Consent orders are as binding on both parties as if the court had made them itself after a full trial. As we have discussed, they must be complied with, and not just passively complied with. You have to positively comply and that might mean taking steps to encourage children to spend time with their other parent, unless there are serious problems. If there are serious problems, you need to get further legal advice (and we’ll talk more about this later). Don’t forget, behaviour that might seem reasonable in the heat of an argument with your ex may not seem so reasonable in the cold hard light of day when trying to explain yourself to a judge.

You can also combine your parenting arrangements and your financial arrangements on the one application for consent orders. It is helpful if the actual consent orders that go with the application for consent orders are separated into property and parenting, as usually you need to give a copy of parenting orders to the children’s school/s and doctor/s—they do not necessarily need to know the nitty-gritty of your financial arrangement and you probably don’t want them to know how much your house, your car and your furniture are worth.

What if we don’t have a parenting plan or consent orders?

If you don’t have either a parenting plan or consent orders, you’re relying on mutual good will. For some families, this can work very well. If you and your ex are great mates, live next door to one another and communicate really effectively, then there’s probably no need for a written document outlining how you will co-parent. However, be aware that sometimes even the most amicable of co-parenting relationships can quickly fall apart. A new partner, a perceived slight, or the realisation that the arrangements aren’t really all that fair can lead to big problems.

We’re often asked questions like what happens if your ex just picks the kids up from daycare and never returns them, and all you’ve got is a loose arrangement with no specified time for each parent. This is the bit where family lawyers make all their money, because in cases like this you generally end up urgently going to court to get your kids back or even to spend time with them.

The best approach, in our experience, is to have a clearly documented parenting plan if you’re very amicable (and have had a ‘good’ separation where you have mutually decided it’s time to move on), and consent orders if you’re not. If you think there’s any chance that your ex will do something like refuse to let you see the kids for extended periods of time, then you need consent orders, because they’re legally enforceable.

The state police cannot recover children unless asked to by the Federal Circuit Court or the family law courts. The state police can go and do a ‘welfare check’ and some officers are very good at talking sense into parents.

What are the different types of parenting arrangements?

There are as many different types of parenting arrangements as there are separated parents.

The worst kind of plans, in our experience, are ones where the kids spend time with Dad every weekend and live with Mum through the week. This means that Mum gets to do all the yelling about homework and socks while Dad gets to take them for milkshakes and brunch and to the beach.

Don’t agree to this arrangement if you’re the mum and don’t try to insist on it if you’re the dad, even if you’re so busy as work that you can’t spend time with your kids through the week but still want to see them on the weekend. It’s just not fair to expect the other parent to do all of the heavy lifting while you get to do the super-fun, happy-time stuff.

The website Emery on Divorce has some brilliant examples of different parenting arrangements, broken down into age groups of the children, and including different plans for different ‘styles’ of divorce—for example, the ‘angry’ divorce, the ‘distant’ divorce, and the ‘cooperative divorce’.47 The type of divorce you have, and the ages of your children, will be very important considerations when it comes to working out your parenting plan.

Otherwise, the arrangements that Rebekah helps develop in her practice, which you can consider as a starting point, are given in the following table.⁴⁸

What is the arrangement called?	How does it work in practice?	In what situations is it suitable?
Live with parent 1 (usually but not always Mum), spend time with parent 2 (usually, but not always) Dad.	The children live with Mum, and spend time with Dad every second weekend from Friday afternoon until Monday morning, and also spend time with Dad for dinner or overnight each Wednesday night, and spend equal time with both parents during school holidays.	This arrangement used to be the ‘norm’ and is still very common today.
Equal time with a weekly changeover.	The children live with Mum and Dad equally on a time-about schedule. This means that the kids spend Sunday night to Friday morning with Mum one week, and from Friday morning till Sunday night with Dad the next week.	This arrangement is probably the most common ‘equal time’ plan.
Week about with an overnight.	The kids live with Mum one week, and live with dad the following week, but spend one overnight midweek with the parent whom they are not living with that week.	Suitable for angry or distant divorces where equal times have been insisted upon by one or both parents, but can also work well for cooperative divorces.
2:2:3 rotation.	The kids live with Mum for two nights, and then with Dad two nights, and then have a long weekend with Mum (three nights). The following week, the kids live with Dad for two nights, then with Mum for two nights, and then have a long weekend with Dad (three nights).	This can be a complicated arrangement and is generally only suitable for very amicable divorces where the ex spouses can work well together (because the children are always leaving stuff at the other house). There are other iterations of this plan, such as the 4:4:3, or the 3:3:4 rotations. These seem complicated but can work really well around the kids’ activities, and children generally like it because they don’t spend too much time away from either parent, from half-siblings or step-siblings or from pets.
Bird nesting.	The kids stay in the family home, and the parents move back and forth during their time with the children between the family home and a second residence, which may or may not be shared by the other parent.	Generally bird nesting is seen as a short-term strategy. It has the benefits of stability for the children but doesn’t allow much privacy for the parents and can get complicated if a new partner is on the scene. Parents must be very amicable.
Come and go.	Where the children can come and go between their parents’ homes as they choose.	Typically the parents will live very close by, or may share a duplex/semi and the kids will be older. Parents must be very amicable.

Do I have to let my baby or toddler spend the night with my ex?

Parenting arrangements for babies and preschoolers can be the most difficult of all to negotiate. It is really important to remember that your child is not a baby forever but the other parent is the other parent forever—the way you both behave now has the potential to set up the post-separation co-parenting relationship for a very long time to come. A mother’s need to have her baby with her is primal, but in order for a child to form a close bond with their father, time together with him is essential, too. Dads can often feel bereft of time with their child and may feel like they are missing out on seeing important milestones. It’s a very upsetting issue for both mums and dads, and there are no easy answers. There are no hard and fast rules either—it really does depend on the circumstances of your family. The fact that it’s so hard for lawyers to be definitive about this is a huge source of frustration for many parents.

Generally speaking, if your kid isn’t being breastfed and they’re over the age of, say, three or four, and they otherwise have a good and close relationship with your ex, then it’s highly likely the court will take the view that it is in your child’s best interests to have some overnight time with their other parent.

Robyn Sexton, a Federal Circuit Court judge in the family law division, wrote an excellent paper on overnight parenting arrangements for the 0–4 years age group. Her paper can be found online and it’s very readable and interesting.⁴⁹ If you can, encourage your ex to read it. It talks a lot about what we’ve discussed earlier in this book in terms of attachment theory and the critical importance of the early years (before age five) in terms of establishing close parental bonds, while at the same time protecting your child’s primary attachment.

The ideal, according to Sexton, is this:50

• Both parents must have a secure and warm relationship with the child before separation.

• The mother is supportive of the father/child relationship, including expressing positive feelings and reassurance on handover and reunion (and vice versa).

• Routine is consistent and predictable and the child is not away from the other parent for more than a few days at a time. (This is a very important consideration. It’s not a great idea for a very young child to spend lengthy periods away from their primary carer. Sexton does note that younger children often cope better for slightly longer if they have older siblings with them on visits.)

• No conflict should be displayed in front of the child or conveyed in any way to the child.

• Both parents must communicate about and monitor the child’s tolerance for the separations.

• Any increasing contact should be gradual, with continuing sensitivity to the child’s reactions and behaviours. (This means that it’s probably best to start with an overnight visit of one night and gradually build up to a full weekend of two or three nights and then assess if the child is coping.)

• Distress at changeover needs to be managed sensitively by both parents. Transitions handled in a negative way will increase the child’s stress.

• Parents must be able to repair a disruption (i.e. work together to fix any anxiety caused by separations or time apart from either parent) to create a secure attachment. This means that if, for example, one night the child is with their other parent and is very upset and can’t settle, then the primary carer is consulted and, if necessary, the child is returned to the primary carer without any fuss or drama.

If you are like many separated parents, the above list might feel almost impossible. It is the very definition of both parents having to be the Sane Parent. If you can, aim to get as close to the list as possible. With that in mind, it’s probably best if you (if you’re the primary carer) facilitate overnight visits for your child with your ex once the child is about three or four, and without the court ordering you to do so, as long as the above list is adhered to.

It reflects well on you, and most importantly, if there are no real issues of risk it’s good for your child to have that time with their other parent, especially without them feeling like they are betraying you—which they are not.

When you’re feeling sad about this (and you probably will feel very sad) it can be helpful to remember that doing everything you can to facilitate your kids having a great relationship with their other parent makes you a fantastic mum or dad. A close, functional relationship with both parents is critically important to your child’s development and giving them that time without making anyone feel bad or guilty about it is one of the best things you can do as a parent.

Case study—Skylar and Aaron

Skylar and Aaron separated when Skylar was six months pregnant. When Alice, their baby, was born, she lived with Skylar but spent time with Aaron from birth; at first three times a week, for one-hour blocks and then, as she grew older, for more frequent and longer periods of time. He also FaceTimed her every day at 6 p.m. to say goodnight, even when she was a barely sentient newborn blob.

As Alice was breastfed until eighteen months of age, Aaron didn’t push for overnights.

When she turned two, Skylar asked Aaron if he would look after Alice for the night of Skylar’s office Christmas party. Slowly, over the next year, Alice more frequently spent the night with Aaron, and by age three, she was spending time with him every second Friday night from after daycare until 4 p.m. Saturday. Aaron and Alice also went to Bali together for four days when Alice was four. When she turned five, she started spending every second Friday and Saturday night with Aaron, returning home at lunchtime on Sunday. When she started school, Alice started spending time from after school Friday to before school Monday every second weekend with her dad, and half of school holidays with each parent. When she started high school, Alice spent equal time with both parents.

Alice grew into a very happy little girl with strong attachments to both Skylar and Aaron.

What are the normal arrangements for tweens and teens?

When you separate and you have older children, the arrangements can be quite different from those suitable for younger children.

Once over the age of, say, ten or twelve (the court has taken a child’s wishes into account from a younger age than this, but it’s a good guide, and we’re deliberately vague here because it really depends on the maturity of the child), the child can have fairly substantial input into the contact arrangements on their own behalf.

An older teenager, such as a fifteen- or sixteen-year-old, might elect to not have overnights at all, but instead might meet their mum or dad for dinner a few times a week, and for Sunday lunch. Or, they might spend Saturday nights with their other parent but leave quite early the next day. In circumstances where a young adult has clearly stated they do not want to spend overnights with one of their parents, it would be very unusual for a court to make any sort of order, and even more unusual still for a contravention order to be made in circumstances where a teenager has voted with their feet.

This can be very difficult for the parent who doesn’t live with the teenager to cope with. It can feel like a crushing blow, and for the parent the teen does live with, the fact that they have no young-adult-free time at all can also be quite difficult. It can be pretty tough on the teenager, too; they will most likely be very worried about hurting their parent, but at the same time doesn’t want to keep the same schedule as their younger siblings, or the schedule that was devised when they were much younger.

There’s not much that can be done about a teenager who doesn’t want to spend overnights away from their main residence anymore, except to try to carve out time with the teen, and create a new, more adult relationship. It can help to try to encourage a ‘come and go’ policy, where your teen feels comfortable coming to and going from your house as they please, which might encourage them to see you more if they’re not being pressured to do so. You can, of course, go to court, and ask them to enforce the consent orders, but as our dad says, good luck trying to make a fifteen-year-old do anything to which they are diametrically opposed. You might as well try to stop the sun rising in the morning while you’re at it.

Teenagers who have lived through highly conflictual separations generally do vote with their feet. Worse still, they can decide ‘a pox on both your houses’ and take themselves off to live with extended family or friends, in households where they perceive things to be ‘normal’. Rebekah has seen parents who, too late, realise that the decade they spent fighting with one another resulted in a teenager simply having had enough and not wanting to be much involved with either parent anymore.

My ex wants fifty-fifty care of the children, but we can’t get along at all!

There’s a curious phenomenon in family law matters whereby some separated parents who are completely at war with one another think that the best way to resolve this is to have even more to do with one another by co-parenting half the time each.

Family lawyers call this the ‘we cannot co-parent, therefore we must co-parent more’ conundrum. It is entirely standard for one parent to threaten to take the other parent back to court to try to get fifty-fifty shared care (also known as equal parenting time) in an attempt to get their own way on some other matter.

The court will more than likely not order shared care where parents cannot even decide on the most basic matters together without conflict. This isn’t to say that it never happens, just that open warfare between former spouses reduces the likelihood of equal parenting time being ordered. Shared care, or even substantial and significant time, is generally only suitable where parents are amicable and are able to work together in the best interests of their children.

If we look at the Family Law Act (and why not? It’s so riveting!), we will see what the court thinks about parents at war. The Family Court’s primary considerations in determining what is in the best interests of a child include: ‘(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’.

We know that parents who are openly at war with one another are subjecting their children to psychological harm. We also know that co-parenting, especially fifty-fifty, requires a great deal of patience, understanding and cooperation, and isn’t suited to angry divorces. The case law on this clearly supports the notion that shared care and joint parental time are best suited to parents who get along.

Case study—Misha and Toni

Misha and Toni separated after five years together. They had two children, James and Ava, aged seven and nine. Misha was a schoolteacher and Toni was a vet. When they split, they were very keen to remain friends, and Toni bought a two-bedroom house around the corner from the home she formerly shared with Misha.

They decided that they would share the time they spent with the children equally, with James and Ava spending four days with Misha and then four days with Toni in turn on a rolling schedule. Toni also did parent reading at the school three mornings a week, and Misha picked the children up from afterschool care each day, as she worked at the same school, and dropped them to Toni when Toni finished work.

It was their intention that as the children grew older, they would be able to go between the two houses as they wished. Most Wednesday nights, all four family members met for sushi for dinner. Misha and Toni also had a parenting meeting each fortnight where they met for coffee and discussed matters relating to the children in a more structured way.

We can see from this case study that Misha and Toni have been able to share the time they spend with their children equally because they live close by one another, they both have flexible and supportive workplaces, they are both in stable employment, and they have a cooperative and settled relationship with one another.

Studies have found that without these factors, equal time in shared care arrangements can be extremely stressful for everyone, but most detrimentally, is stressful for children.51 If equal parenting time is important to you or to your children, developing a good, cooperative working relationship with your ex is the best place to start. You have to get the trust back into your interactions and it may take a great deal of concerted effort to get to a place of mutual respect and understanding. If that means turning the other cheek and laying down your weapons, then do it. This is not about you winning, this is about your child growing up without conflict and constant anxiety about how Mum and Dad will behave at the next soccer game or school event.

Rebekah reminds new clients that where there are no real protective concerns, the aim of the game is to be that family where the kids ultimately don’t need to stress about inviting both parents to their wedding.

Judges often express their frustration with parents who are too busy engaging in warfare to actually co-parent. Judge Coker of the Federal Circuit Court once wrote in a judgment:

I have rarely been as disturbed by the comments that I have seen within family reports as I was by these comments. In a period of 18 months, the actions of these two apparently caring, loving and nurturing parents has torn the very fabric of their son’s emotional wellbeing to shreds. Without a shadow of a doubt, they should both hang their heads in shame. They have both taken every possible step they could to score points against each other, and the absolute tragedy is that their son, to whom they profess the profoundest and deepest affection and love, has been the collateral damage.52

If your goal is to raise successful, healthy, loving children with the ability to maintain adult relationships, then both parties need to sometimes bite their tongue and turn the other cheek. The irony of highly conflictual parenting matters is that both parents are usually absolutely convinced that they are being the better parent and are ‘fighting’ for their children, when usually all they are doing is causing their children damage and spending money on legal fees that could be better spent on their children.

Sometimes, though, there are litigants who we family lawyers call ‘the bad, the mad and the sad’. This is where one or both parties cannot be the Sane Parent. In these cases, no amount of cheek-turning and tongue-biting will help if the other parent, for whatever reason, cannot co-parent. Drug abuse, mental illness or just being a terrible person means that co-parenting is impossible. Co-parenting should not put your child or you at risk and prevention of that risk overrides the benefit of having a meaningful relationship in these cases.

What are the best plans for changeovers?

If you just can’t get along, changeovers (where the child is ‘handed over’ from the care of one parent to the care of another) can be an enormous source of stress and anxiety for both parents and the children. In some cases, where the parents have an angry divorce, it can be better to minimise all contact between the parents as much as possible. It is enormously damaging (and refer back to Sexton’s report for more information on this) for a child to witness conflict between parents, particularly at a time when the child may already be experiencing stress at the prospect of leaving one parent.

Some parents are in such a state of war with one another (or one party is so afraid of the other) that changeovers have to be done in the carpark of the local police station, or in a public place, such as a McDonald’s. If this can be avoided, then obviously that’s best for everyone, but most especially it’s best for the children that their family’s dysfunction is on limited display to the public. Some families also utilise the services of a Children’s Contact Service for supervised changeovers, which we’ll talk about more a little later on.

If you are doing in-person changeovers, it’s really important to minimise conflict as much as you can. It’s horribly upsetting for the children to witness conflict or even cold rudeness between their parents. Here’s some things to avoid:

• Videotaping the changeover on your mobile phone (unless you are specifically advised by your lawyer to do this), no matter how crucial you think the ‘evidence’ is. (This is much more common than you might think.)

• Taking the opportunity of being in the presence of your ex to make personal comments on their appearance, the state of the house or the garden, their new car, or their animals. Saying, ‘Ew, your dog stinks’ is rude and also, that’s your kid’s dog too.

• Ignoring your ex completely. Say hello and goodbye to your ex pleasantly. There’s really no need for much more than that.

• Taking the opportunity to discuss difficult issues on the doorstep, or to dump unpleasant news on your ex (such as ‘I’ve filed for full custody’ or ‘I’m engaged to my affair partner’). Save that for later, preferably in writing, and possibly from your lawyer.

Basically, the only important thing to concentrate on during changeovers is your child or children. It’s not a social call, unless you and your ex are actually friends. The kids are the focus—either say hello or goodbye to them at the door and then leave.

One way to limit interactions without the need for supervision is to design a parenting plan or consent orders whereby changeovers occur at school or daycare. This can be challenging, especially if the children are quite young, but there are ways around it.

Case study—John and Peta

John and Peta were married for eight years and now hated each other. Their divorce was absolutely toxic. They could not speak to one another without it degenerating into a vicious slanging match, and there were incidents of shoving between them. One time John shut the door on Peta’s arm at a changeover, and another time Peta ran over John’s foot. They had two children, Grace and Petra, aged five and seven.

Grace and Petra were in kindergarten and grade 1 at school. Every second weekend, they spent time with John. Because of the inability of John and Peta to communicate, they devised a schedule that limited their interactions. John picked the girls up from after-school care at 5 p.m. every second Friday, and dropped them back to before-school care by 8 a.m. the following Monday.

John and Peta used an app, called 2Houses, to communicate because they could not directly contact one another due to the animosity between them. The app ensured that communications were respectful and limited to matters relating to the children. Peta had a home phone that John could call the girls on between 6.30 and 7 each night, and Peta would not answer the phone during that time—Petra, the seven-year-old, would.

Other options can evolve over time, especially as the children grow older.

Case study—Sergio and Maria

Sergio and Maria could not get along. Maria absolutely despised Sergio. They had three children together, Marco, Michael and Bella, who were all in their early teens.

Each Wednesday night, the three children travelled to Sergio’s house after school, and they had dinner with their father. After dinner, Sergio dropped the children back to Maria’s house by 8.30 p.m. He would not go in the front gate.

Every second weekend, the children spent Friday and Saturday nights with Sergio, travelling to his house after school, and on Sunday at 5 p.m., Maria would pick the children up from Sergio’s house. She would beep the horn to let the children know she had arrived, and would not go in the front gate.

Sergio and Maria communicated via email regarding the children, and Sergio could not contact Maria at all via iMessage or her phone (she blocked him). He communicated with the children directly, as they all had mobile phones.

Parallel parenting

This is a good option for very high-conflict divorces. Parallel parenting is the opposite of co-parenting, and is worth trying if you and your ex are constantly in a state of conflict, whether the conflict is over child-related matters or not, and you are both otherwise functional people.

Equal, shared parental responsibility is limited to ‘major longterm issues’ such as those relating to the child’s education, name, religion, health matters or, for example, moving away so that the child’s ability to see the other parent is impacted. Equal, shared parental responsibility does not mean that your child’s other parent gets a say on how you run your home, or how you parent on a day-to-day basis. We know of one man who emailed his ex a twelve-page diatribe because she changed the brand of nappy she was using. This is not co-parenting, this is controlling your ex through your child.

In cases where you cannot co-parent, and where your ex is so angry and unreasonable (or you are) that your child is being exposed to conflict between parents, disengaging for a time (or forever) can be really helpful in terms of pressing the reset button, and giving you both some distance. As we know, the most damaging thing for a child to face after divorce is conflict between their parents.

Either parent can impose parallel parenting, and you do not need permission from your ex to do so; nor do you need to send inflammatory and dramatic emails advising the other parent that you are now parallel parenting and then going into a long diatribe detailing all of the other parent’s many and various faults. (Don’t forget this email will probably go into an affidavit and you will look crazy.)

There’s no legal impediment to parallel parenting, as long as you consult with the other parent (even indirectly) on matters of ‘shared parental responsibility’ and follow the parenting plan or consent orders.

The key features of this approach are:

• The parenting plan or consent orders must be highly specific and must be stuck to rigorously. In parallel parenting, there’s no room to ask one another for favours such as swapping days. All communication is indirect, and kept at a bare minimum, and verbal communication is not used at all—no talking on the phone, which can lead to shouting matches.

• No direct contact of any kind with one another. Many parents opt to use a parenting app, such as 2Houses, or Our Family Wizard. These apps (and there are several others) mean that you don’t have to communicate via a phone-based messaging app (such as iMessage) or by email, which can greatly reduce conflict while still giving you a record of your discussions. These apps have, by and large, replaced the old-fashioned ‘parenting notebooks’, and can’t get lost!

• In many cases, one parent may block the other parent from being able to contact them on their phones (most smartphones have this feature) and instead provide a third-party number for emergencies (such as the child’s grandparent) who can then contact the other parent.

• If old enough, the children are given a phone that each parent can contact them on. Otherwise, each parent can contact the children on a designated number at a designated time and the children, not the parents, answer.

• In the most extreme cases, all communication is done between lawyers. A still extreme but less expensive option is to have all communications go through a third party, such as a grandparent or a close and trusted friend.

• Changeovers are done in a way whereby direct contact between parents is non-existent. The best way to do this is to make school, daycare or preschool the changeover point, so that one parent drops the child off in the morning after a contact period, and the other parent picks the child up in the afternoon (see also the section above on managing changeovers).

• Difficult, unavoidable discussions, such as about schooling choices, are had only with a third-party mediator present.

It’s certainly possible for high-conflict divorces to gradually settle down as everyone moves on with their lives, so parallel parenting may not be needed forever. In the meantime, it can absolutely help in establishing appropriate boundaries and can definitely reduce conflict.

My child is refusing to go to their other parent’s house—what are my options?

If you have consent orders or a court order, you must comply with the orders unless you have a reasonable belief that to do so will endanger you, or your child, or you have some other reasonable excuse, which we’ll explain more later on. The court can make orders for children up until the child is aged eighteen, but in practice it’s a bit of a different story, as we discussed earlier.

Sometimes, a young child will say that they don’t want to go to Daddy’s house, or they don’t want to go to Mummy’s house. This can be very upsetting for the ‘rejected’ parent, but as always, communication is key. As gratifying as it may be for the ‘chosen’ parent, it’s usually not in the child’s best interests to refuse to spend time with both of their parents and it’s your job as the parent to get to the bottom of why your kid doesn’t want to spend time with your ex.

You wouldn’t let your child choose not to go to school, and going to their other parent’s house is similarly not generally optional. If there are consent or court orders in place, there can be serious consequences if your child doesn’t go to their other parent’s house as set out in the orders, unless there is a reasonable excuse. A reasonable excuse may be that your child was at school camp, or was hospitalised, or was bedridden with the flu and you’ve got the doctor’s certificate to prove it, and you notified your ex of this in writing.

In cases of refusal, you can ask non-leading questions to find out your child’s reasons (such as ‘Can you tell me why you don’t want to go, so we can figure it out together?’ rather than ‘It’s because he never spends any time with you without that skanky ho53 following him everywhere, isn’t it?’).

It’s important, obviously, to get to the bottom of refusals, because sometimes it can be for not-very-nice factors, which we’ll discuss at the end of the following list.

Refusal can be for a range of reasons:

• A mismatch in parenting styles, where one parent is very lax and the other is very authoritarian, so the child is confused about acceptable behaviour in either house, or just frankly prefers the house where they are allowed to stay up late gaming, eat junk food, and not have to go to school if they don’t want to.

• An attachment issue, where a child is very anxious and fearful away from their primary attachment figure (generally the mother, although not always).

• A lack of quality time together, especially where households are busy with step-parents and step-siblings and other siblings, chores and weekend sport—it’s easy for one kid to slip beneath the radar and feel left out and alone.

• The child may sleep with Mummy in her bed but isn’t allowed to share a bed at Daddy’s, or the child may share a bedroom with a sibling in one house and love it/or hate it, and may want/not want that same situation at their other house.

• A great deal of animosity between parents, so that the child feels guilty for leaving Mummy or Daddy.

• The child misses their other parent unbearably when they are away, and the period away is too long. In these cases, by being a bit more flexible and a bit more sensitive to what your child is trying to tell you, you’ll actually improve your relationship with your child far more than an extra night a fortnight ever would.

• Their needs aren’t being met by the parent when the child is with them (such as Daddy spending all day in bed or Mummy talking on the phone too much).

• Little things, like the other parent having a scary cat or a mean neighbour, or hurting the child while brushing their hair, can build up into huge and valid things in the child’s mind.

• A child feels like they need to tell both parents that they don’t want to go to the other parent at the end of each changeover—especially in highly conflictual separations, the child is telling both parents what the child thinks that parent wants to hear. This means the child is pretty much always anxious about leaving either parent and loves both parents.

• Or, sometimes, it can be for big things—neglect, abuse, bullying, violence—all the horrible things we don’t want to think about, and are not necessarily perpetrated by the other parent, but by other people your child comes into contact with in their home.

Once you’ve gotten to the bottom of the issues driving the refusal, you can attempt to work with your ex on what the problem is. (Isn’t that going to be a fun conversation?!) For example, your child might simply want to spend more one-on-one time with their other parent, and might need to be made to feel a bit more special. Or, they might need to have access to snacks between meals. They might need to break up the visit a bit by seeing Mummy after school one day, or for a milkshake on Saturday morning. Or both parents may need to let the child know it is okay to go to the other parent, that Mummy or Daddy won’t be sitting around pining for them and crying.

By acting in the child’s best interests, not according to what the parent wants, refusals can often be addressed so that the child chooses to go. Making a small child go kicking and screaming to their other parent isn’t good for anyone, let alone the poor kid, and isn’t going to do much for parent and child bonding. However, sometimes the issue is not spending time with the other parent but the actual changeover itself. Usually your child will be absolutely fine within ten minutes. You may remember your child’s first few weeks at daycare or school—when they were sobbing uncontrollably as you left but were fine pretty much as soon as you had gone. Rebekah remembers sitting in the carpark at daycare trying to compose herself after her eldest was hanging onto the gate sobbing, ‘Mummy, Mummy please don’t go’, then ringing the centre, to be told, ‘Oh, she’s fine; in fact, she was fine as soon as you left, she’s happily playing with her friends now’. Changeovers can be the same and it is the job of both parents to work through this with the child.

Rather than clinging to your child for last kisses, more last kisses, one last kiss because ‘Mummy/Daddy will miss you soooo much’ or showing your child that you are crying or about to cry, say goodbye cheerfully and let your child know it is okay for them to love and spend time with their other parent. Do this in both words and actions.

This is one of those times where you both need to be the adults and reassure your child. Rebekah dealt with her clingy and anxious child by cheerily saying at changeover, ‘Okay, bye-bye, Mummy is off now, have fun with Daddy’.

If, however, the reason for refusal is a big, horrible thing, then your first port of call should be your lawyer. You don’t have to send your child anywhere if there is a reasonable belief that they will be unsafe—in fact, you shouldn’t. But in this situation the key word is ‘reasonable’, and what feels reasonable to you may not stack up in court. You must consult with your lawyer urgently, especially if you have court orders, because otherwise you could be in breach of them and there can be some very serious consequences to breaching orders, as we’ve discussed earlier.

If you do have court orders that provide for the children to live with or spend time with their other parent, then you have to be proactive in making that happen. The family law courts have put out a helpful (no, really) brochure called ‘Parenting Orders: Obligations, Consequences and Who Can Help’ and it says:

You cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.

The brochure (which you can also find online54) details places where you can get help if there are difficulties in getting the kids to go to see their other parent, such as Family Relationships Online (www.familyrelationships.gov.au) or a Family Relationship Centre. Other help is available, such as from a child psychologist or a school counsellor, who can help parents get to the bottom of the problem together.

You must also be aware that if you do not actively support your children’s right to know and be cared for by their other parent, then the courts can and do make orders that the children live with their other parent.

Case study—Martina and Jonah

Martina and Jonah separated after a brief, three-year marriage. They had two children, James and Lily, who were aged two and four at the time of the separation and were now aged eight and ten. Martina was not a fan of Jonah, who had remarried and had two more children.

Since the separation, James and Lily had lived with Martina, who was an attentive and involved mother. She organised many after-school activities for the children, who went to excellent schools, were always on time to class, and had close, attached relationships with their mother.

The children were supposed to spend time with their father every second weekend and for half of the school holidays. He was considered by the court to be a ‘good enough parent’ who didn’t particularly want the children to live with him, but did want to spend time with them.

However, Martina did not take active steps to foster a positive relationship between the children and their father. In fact, Martina made it clear that she would prefer the children did not have a relationship with Jonah at all. She often organised activities, such as family camping trips, on the weekends the children were supposed to be with their father, and put the children in the position where they had to choose where they would go for the weekend. She also made it clear to the children that she did not like their father ringing the house to talk to them. James, in particular, had a very difficult relationship with his father and had made allegations of abuse against him, which were not substantiated.

The matter went to a full hearing of the Family Court. After a five-day hearing, the court ordered that James and Lily live with their father full time, and further ordered that the children only have supervised contact with their mother for two hours a fortnight for a period of no less than six months.

The court found that even though the separation of the children from their mother would be extremely difficult for the children, it considered that the risk of a total breakdown of a relationship with their father was more damaging in the long term.

Supervised time and changeovers

As we’ve discussed throughout this book, the court almost always takes the view that a child knowing both of their parents is really important. The major factors that the court must consider are the benefit to the child of having a meaningful relationship with both parents; and any need to protect the child from abuse, neglect or family violence, or being exposed to abuse, neglect or family violence. If there is a need to protect a child, then this has to be given more weight.

Sometimes, issues can get in the way of a parent being able to care for their child unsupervised, even for short periods of time. This might include allegations or findings of violent behaviour by a parent towards a child or another person, allegations or findings of serious drug or alcohol abuse, or long periods of absence by a parent from a child’s life.

The court can order that a child spend supervised time with a parent at a contact centre. The court can also order that changeovers be supervised. Parents can agree to use a contact centre and this is not uncommon when a parent wants to re-establish a relationship with a child, especially if that relationship was interrupted because the parent was in jail or rehabilitation.

The federal government funds Children’s Contact Service providers across Australia. They are designed to be safe, fun places for children, and the people supervising the contact between the child and the parent are trained in helping ensure that the time is spent in a happy, child-focused way. The details and locations of contact centres can be found at the Australian Children’s Contact Services Association website at www.accsa.org.au. There can be very long waiting lists at the contact centres.

There are also private organisations, such as Dial-An-Angel, LifeCare and Kindred Connect, who provide contact centre services. These organisations can be expensive but usually do not have the lengthy waiting lists that the publicly funded contact centres have. This can be a good option for short-term supervised contact, such as when a brief period of reconnection is needed.

While the Children’s Contact Service is funded by the government, fees will often still apply. Parents on low incomes can seek assistance to access the service by applying to the service provider. More information can be found at www.familyrelationships.gov.au/BrochuresandPublications/Pages/supervised-visits-and-changeovers.aspx.

Generally the idea of supervised time is to reduce and eventually eliminate the need for supervision, but quite often parents agree to other forms of informal supervision, such as the parent staying with a grandparent during contact times if there are any residual or ongoing concerns (such as mental health or drug problems that might impact on the capacity of a parent to fully care for their child). The aim should usually be to get to the point where the parent and child can safely spend time together unsupervised. For some families, that point may never arrive, and supervised time can be a great way to ensure that the child doesn’t completely miss out on the opportunity to know their parent.

It can be confronting to hear a court ordering that your child spend time with you at a contact centre. The court generally makes supervision orders on a temporary basis, whether until a child becomes more comfortable with their parent, until a parent is able to provide clean drug screen results, or until a family report is available. The court has to be cautious and may make an order that you think is really unfair—and it may be really unfair. Sometimes when in this position, a parent will decide to stop participating in the court process, or even worse, in their child’s life.

If you are faced with this situation, it is important to hang in there. Simply withdrawing will just make things worse and will deprive your child of their right to have a meaningful relationship with both parents, and can lead to a devastating rupture in your relationship with your child that may never be repaired. As difficult as it is, as our teenagers would say, sometimes you just have to cop it for your kid.

No time orders

In very unusual cases, an order will be made that a child spend no time with a parent. This sort of order is made when the risk to a child is greater than the benefit to the child of a meaningful relationship and there is no way to reduce the risk (such as supervision or period of being subject to ongoing drug testing—and returning clean results).

Nobody wins in these cases, and they are often the most devastating ones to work on as a family lawyer (not that it’s all about us). However, sometimes there’s no other possible outcome, and the safety of the children must come first.

Parental abandonment

Sometimes, after separation, a parent turns out to be even more selfish than you’d ever thought possible, and abandons their children. This can be total abandonment (such that the parent just never sees the child again) or sporadic abandonment, where the parent sees the child when it suits them.

As we’ve discussed before, the courts can order a child to spend time with a parent but can’t (and won’t) make a parent spend time with the child. While child support and spending time together are totally separate things at law (which means you can’t deny contact because your ex hasn’t paid their child support), it’s quite common for a parent to skip out on the child and show enormous reluctance to pony up the cash as well (by doing cash jobs, or being underemployed, for example).

Parental abandonment is absolutely horrible, for both the child and the parent left holding the baby. There’s never a good reason to abandon your child, and no, the difficulties and challenges of the family law system don’t excuse it. We’re so sorry if you’re experiencing this. It’s awful to not be able to talk to your child’s other parent, the only person on earth who should love them as much as you do, about your kid.

It’s very difficult for the child and they will need a great deal of support to help them deal with it. Counselling is crucial in these cases. If money is short (not least because of the deadbeat other parent), then school counsellors are a great place to start, as is a mental health plan from your GP.

Disputes over international travel and passports

This is a very common area of conflict between separated parents. And boy, is it a tough one.

In Chapter 1, we discussed international parental abduction. It’s such an important issue we put it right at the front of the book. In this section, we’re going to talk about international travel with children in a bit more detail, and what your options are.

As you probably know, without a court order it is difficult to get a passport issued for a child if the other parent won’t consent to it. It’s also common for one parent to put the children on an airport ‘watch list’ so that the other parent can’t leave the country with the children even if they do have passports.

There are generally two issues at play here. The first issue is your garden-variety attempt at control. By refusing to let you take the kids to Bali for a week,⁵⁵ your ex is still having a very big say in your life and they’re basically trapping you in Australia, possibly for the next eighteen years. While not being able to go on overseas holidays is by definition a First World problem, it’s still upsetting and annoying.

The second issue is more serious. One parent may have real and warranted concerns about the possibility that the other parent will leave the country with the children and not return. As we discussed earlier, getting your children back in this situation is expensive at best and utterly impossible at worst, depending on the country. The publicity regarding a failed attempt in 2016 to recover children from Lebanon was heartbreaking and scary.

In matters such as these, parents often self-represent. It’s not that hard to self-represent, and there are many online resources that can help guide you through step by step (in addition to this one, of course!)

In the first instance, you can make a special circumstances application to the Passport Office for a passport to be issued to your child without the other parent’s agreement. This is usually only granted in cases where there are orders allowing international travel or the other parent has disappeared off the face of the earth, and you’ve made substantial efforts to locate them.

Otherwise, if your ex simply won’t agree to your children being issued a passport, or being allowed to travel internationally, you will have to apply to the court for an order. This is actually quite a common application but it can take a very long time to progress through the system. The court will consider the case on its merits and make an order one way or the other. This involves assessing the risk of failing to return the child to Australia and the benefits of visiting the other country.

In one case we know of, the mother had not told the court about any particular benefits of the child visiting her home country and had, at separation, apparently offered the father money if he agreed to allow her to take the child to live in that country. The mother did not address this allegation in her affidavit, and so was taken to have not denied the allegation. The mother did offer security in the form of funds of $200 000 against her not returning, but had not set out whether this was enough to allow the father to pursue recovery through the courts in the other country, or sufficient motivation for her to return. The assessment of the court was that:

In assessing the risk of detriment … the potential loss of meaningful relationship with the father and the benefits that may flow from that against the potential benefits to the child in allowing the travel … at this stage the child’s interests are not supported by allowing the mother to travel with her to Country D.56

If you are from a non–Hague Convention country (and see Chapter 1 for more information about what the Hague Convention is), have had an incredibly nasty divorce, have extensive family in your home country, and have lined up a job there, the answer from the court as to whether you can take the kids on a holiday back home will probably be no.

If, however, you are from a non–Hague Convention country and have substantial ties to Australia, such as a home, job and superannuation, and have actively supported a relationship between the child and their other parent, then the answer may be yes but you may be required to provide security in the form of cash.

The risk assessment may change over time. In one matter Rebekah was involved in, the judge at first did not allow the mother to travel to her home country with the child. The country was not a signatory to the Hague Convention. By the final hearing, the judge found that the mother had significant ties to Australia, including money in the bank, superannuation, a good job that she liked and a partner who also had a good job. The child had been talking to her grandparents in the other country by Skype and there was medical evidence before the court showing that the elderly grandparents were not able to travel to Australia. Despite quite a lot of nastiness from the father, the mother had continued to support the child’s relationship with him. The judge found that given all of these circumstances it was more likely than not that the mother would return to Australia with the child, and the mother did just that after a lovely visit to her family.

Sometimes a teenager wants to go overseas without their parents. If your child has been chosen to go for a school excursion overseas (and done the fundraising) or to Paris with their much-loved grandmother, and you say no without a good reason, expect both the judge and your teenager to be deeply unhappy. While really all the judge can do is make orders (possibly including that you pay the costs of the other party) against you, it is likely that the damage done to the relationship with your child will be immense and unnecessary.

As with all disputes over parenting choices, mediation is often a great way to resolve these issues, which are one of the most common reasons parents return to mediation after their matter has been finalised.

Sole parental responsibility

As we know, the Family Law Act presumes that it is in the child’s best interests for parents to have ‘equal shared parental responsibility’ for their child or children. However, in some cases this presumption does not apply, such as when there is proven family violence, and when the child has been subjected to abuse by the other parent.

In other cases, shared parental responsibility is a ‘rebuttable presumption’—that is, either parent (or sometimes both) can put forward their arguments as to why the other parent should not have shared parental responsibility. You have to do this by applying for an order of the court. The assumption of shared responsibility can only be rebutted in a limited number of circumstances. It’s not something that the courts will agree to lightly.

Sole parental responsibility is usually granted to a parent in circumstances where the other parent is unable to easily communicate with the parent (for example, the other parent is in jail for a lengthy period of time). Or where it would not be in the best interests of the child for the parents to share parental responsibility, whether because one parent does not have the capacity to make decisions (this could be due to a brain injury, or drug use or a mental illness) or due to intractable conflict (when parents cannot agree on anything at all and the chances of them ever agreeing in the future are vanishingly small).

The last point is generally the most difficult application to make to the court. The court expects parents to behave like adults, but sometimes, for whatever reason, the relationship between the parents has completely broken down to the point that the court judges it to be unsalvageable.

Or it may be that the parents have such contrary and strongly held views, over very important matters such as the child’s religion or a decision to medicate or vaccinate the child, that it is not in the child’s best interests for the parents to continue to try to resolve their differences, because it becomes clear that this will not be possible.

Case study—Amit and Raia

Amit and Raia had been married for fifteen years. They had two children, Anja, who was twelve and Muhammad, who was ten.

A significant dispute between the parents arose over Amit’s desire that Anja wear a hijab as she approached puberty, and that she only associate with other children of her religion, by going to a particular school. Raia, who did wear a hijab, wanted the decision to be Anja’s alone, and did not want her children to only associate with other children of the same religion. She wanted the children to remain at the same secular school.

These and other issues lead to Amit and Raia separating. Raia applied to the court to have sole parental responsibility of Anja and Muhammad because of Amit’s very strongly held views, which were so contrary to hers that she felt agreement could not be reached.

The court ruled in Raia’s favour and granted her sole parental responsibility for the children.

Sole parental responsibility doesn’t necessarily mean that the parent without responsibility will also be denied the opportunity to spend time with the child. It doesn’t mean sole parenting—it just means that it’s in the best interests of the child that only one parent make the decisions in relation to major issues. Often, even if a parent has sole parental responsibility, that parent must first ask the other parent for input into the decision to be made, and must take that input into account when making the decision.

Sole parental responsibility can also be granted over certain issues. This means, for example, that a parent may be granted the sole responsibility to make decisions relating to the health of a child.

Disputes over medical treatment

Another hotbed of acrimony between separated parents is the reality of having to make medical decisions together.

Deciding on surgery or a course of treatment, or, even more heartbreakingly, making the decision to cease treatment for your child, when there are conflicting opinions between doctors and between parents is incredibly difficult. So difficult, in fact, that sometimes the court has to decide. Mediation, of course, can help. Common disputes are over:

• medical issues that are largely cosmetic but are upsetting for the child (such as sticky-out ears or a prominent nose)

• experimental procedures that may not have a tangible, proven benefit to the child

• continuing cancer treatment or ceasing cancer treatment and moving on to hospice care

• removing teeth for orthodontic procedures

• other non-emergency procedures.

If your child is faced with an operation or procedure, consent is a slightly or possibly hugely tricky issue if you’re separated. Older children may be able to consent to medical treatment (including birth control) themselves. The term is often called ‘Gillick’ competency, after a case in England where Mrs Gillick wanted an assurance from her area health service that no doctor would prescribe contraception to any of her daughters without her consent until they were eighteen. The area health service had put out a circular stating that doctors could prescribe contraception to a child under sixteen without parental consent and that it was a matter of the doctor’s discretion. The English House of Lords found that: ‘As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.57

The High Court in Marion’s case58 held that Gillick is law in Australia as well, stating that: ‘A minor is … capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.’ New South Wales and South Australia have legislation covering the age that a child can give consent (fourteen and sixteen respectively).⁵⁹

As we’ve discussed, the family law courts can give both parents shared parental responsibility over medical decisions, or can decide that one parent only can make decisions relating to the child’s medical needs. There have to be pretty good reasons for the family law courts to take this responsibility away from one parent and give it solely to the other, and it’s generally for reasons such as one parent holding such extreme views that the court decides they are incapable of making reasonable decisions with the other parent.

It’s also common for one parent to try to exert control over the other parent by obsessing over the health of the child, or by being overly critical of the pretty reasonable choices being made by the other parent when they are caring for the child, such as giving vitamins or cough medicine, or using a certain brand of lotion instead of some other brand. We know of one case where one parent actually wanted an itemised list of all the pharmaceutical products the child (who was twelve) had ingested over five days when the child had a cold. The list, when supplied, comprised children’s Panadol and over-the-counter eucalyptus cough drops. To be clear, these are not major long-term ‘medical’ decisions, they are day-to-day ‘parenting’ decisions. It’s a form of very nasty bullying when one parent tries to control the other parent like this.

Another really difficult topic is vaccinations, when one parent wants to vaccinate and the other is vehemently opposed. Regardless of how we as lawyers feel about these beliefs, there can be little doubt that among some parents they are very strongly and genuinely held, and it’s not unknown for one parent to disappear with a child in order to prevent vaccinations. (Rebekah used to practise family law near Byron Bay, where this occurred.)

Again, if mediation fails, a parent can apply to the court to order that the child be vaccinated, but the court won’t order that a child not be vaccinated unless there is a very compelling medical reason why not, such as the child has a greatly weakened immune system. This requires medical evidence from someone properly qualified to give it. Only experts can give evidence of opinion and the opinion must be based on their particular expertise using the methodology that is appropriate to the question at hand.60

Special medical procedures

The Family Court has a special jurisdiction in matters involving medical procedures such as gender reassignment for minors, sterilisation of minors, and matters where there is no parental consent given for lifesaving treatment. There are also state laws that cover sterilisation of minors and lifesaving treatment. This is a fascinating area of law and ethics but not something that we can cover in any detail here.

There is some controversy regarding whether gender reassignment should have to be the subject of an application to the court, as the vast majority, if not all, medical professionals working in this field are not only experts, but are ethical and sensible as well.

Sterilisation of minors with a disability is a complex matter and has to be decided upon on a case-by-case basis. Ethical issues regarding the right of a person to have control over their own reproductive decisions have to be balanced with the capacity of the child to make the decision and deal with the consequences of the decision—whether now or in the future. To make a decision that a child undergo invasive surgery to deprive them of the ability to have a baby is not a decision that could ever be made lightly.

The family law courts can be asked to make an order that a child have lifesaving treatment in cases where one or both parents are refusing to give consent. The hospital or a parent can bring the application. If there are court orders providing for shared parental responsibility for medical issues, and a parent does not consent, then an application to the court can be made in circumstances of urgency, and generally this will be heard immediately (and usually your lawyer will have chosen that day of all days to wear jeans to the office).

The court is most likely to act with caution and to order that the parent consenting to medical treatment has sole parental responsibility for that issue, unless some very compelling medical evidence from an appropriately qualified medical practitioner backing up the non-consenting parent is available. As we mentioned previously when talking about vaccinations, only experts can give evidence of opinion and the opinion must be based on their particular expertise using the methodology appropriate to the question at hand.61

The court will overrule religious concerns (such as those held by Jehovah’s Witnesses regarding blood products) if a child needs urgent medical treatment, even if the child also withholds their consent.

Choosing your child’s name

Choosing your child’s name (including the first name and the last name) can be hard for couples who are still together, and for couples who have split up before or shortly after a baby is born, it can be a minefield. If parents cannot choose a name, then an application can be made to the family law courts or to the registrar of Births Deaths and Marriages, who can assign the child a name.

In one case, the judge said that her approach was to let the parents know that if they could not agree, she would call the child Susan if a girl or Peter if a boy. She would then send them outside for one last chance to agree. Apparently there are quite a few Susans and Peters around as a result.

There are limitations on registering names and in most states these include:

• names that are obscene or offensive

• names that are too long

• names that include symbols without phonetic significance

• names that are ranks or titles, such as Princess or General (so no Major Major Major Major)

• a name being, for example, contrary to the public interest, such as ‘Hitler’ or ‘Bonghead’ (no, seriously).

A child lumped with a problematic name can always ask the court to change it. In New Zealand, a judge who was asked by a child to change her name from Talulah Does the Hula From Hawaii said: ‘The court is profoundly concerned about the very poor judgment that this child’s parents have shown in choosing this name. It makes a fool of the child and sets her up with a social disability and handicap, unnecessarily.’62

The New Zealand judge further said that names like Stallion, Yeah Detroit, Fish and Chips, Twisty Poi, Keenan Got Lucy and Sex Fruit had been prohibited by New Zealand registry officials,⁶³ meaning that these were names that people had tried to register for their children. The Swedish Government said no to @ Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116, the Danes were not having Anus, and the registrar in the state of Victoria decided Satan was not on, but apparently New South Wales did allow Fully Hektik Sik.⁶⁴

Changing your child’s name

Applying for a change of a child’s name (either first name, last name, or both—or even middle names, we suppose) is done through Births Deaths and Marriages in the state in which the child was born. Changing a child’s name is not an exercise to be embarked upon lightly. In most states, usually if both parents are named on the birth certificate, then the registrar of Births Deaths and Marriages will require that both parents sign the application before a qualified witness. In Western Australia, if both parents have signed the application for a birth certificate, then both will need to sign the application for a change of name.

If a parent who is named on the birth certificate does not consent to a change of name, then a court order will be necessary. Your child’s name is defined in the Family Law Act as a ‘major long-term issue’ and if there are court orders saying that you and your ex have shared parental responsibility for the children, then you must consult with your ex before changing your child’s name. If you and your ex cannot agree, you will need to make an application to the court.

If the child is over twelve, then they will need to consent to the change in name and sign the form in front of a witness.

If both parents are not named on the birth certificate, the parent not named on the birth certificate can still apply to the family law courts (usually the Federal Circuit Court) to stop the other parent from changing the child’s name.

An application can also be made to the family law courts to stop a parent from informally using another name for a child—just adopting another name despite what the birth certificate says. This includes filling out forms (enrolling the child in, say, dance classes) with a different name from the name on the child’s birth certificate.

There are some limitations on how many times a child’s name can be changed (you can’t change it three times in two years, for example), and in some states there are also limitations on changing the name of a child if an order has provided that the director-general of a state child protection agency has parental responsibility, or if the child is under the supervision of correctional services, a mental health review tribunal, or is a registered sex offender.

When considering an application to change a child’s name, the court will generally consider:

• the welfare of the child, which is the paramount consideration

• the short- and long-term effects of any change in the child’s surname

• any embarrassment likely to be experienced by the child if the child’s name is different from that of the parent with whom the child lives

• any confusion of identity that may arise for the child if their name is changed or is not changed

• the effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage

• the effect of frequent or random changes of name.65

As we have discussed, even if you and the other parent agree to a change of name, the registrar of Births Deaths and Marriages in your state will not allow a child’s name to be changed to a prohibited name (so Princess Consuela Banana Hammock is probably out, and Crap Bag definitely is).

I want to move away so that I can afford to buy a new house but my ex says I can’t

Relocation cases (that is, where one parent wants to move away from the other parent) are notoriously difficult to predict in terms of outcomes. When lawyers talk about ‘bad, mad or sad’ cases, relocation cases are often the ‘sad’ cases. Often, two parents are perfectly good parents, the children love both parents and the parents have very good reasons for wanting to live thousands of kilometres apart.

When deciding on relocation cases the court’s paramount consideration is still the best interests of the child. Each case depends on the unique circumstances of the matter. Generally speaking, the court may find that moving a distance of an hour away is acceptable, but if it means changing schools or spending much less time with the other parent, it becomes a more difficult proposition.

This can be crazy-making for the parent who is trying to rehouse themselves. Feeling ‘stuck’ and having an ex controlling where you can live is the number one complaint of the vast majority of separated women who find themselves priced out of the property market post-separation (and in these cases, it’s usually the woman).

On the other hand, it can be very upsetting for a parent (often the father) to lose substantial day-to-day contact with his children if their mother moves away. These are very difficult cases. The court tries to determine them on a ‘least worst’ outcome basis, and the wishes of the child will be taken into account.

Case study—Rachel and Mark

Rachel and Mark had one child together, Emily, aged twelve. They had been separated for four years, and Mark cared for Emily every second weekend and for half of the school holidays. This arrangement was working well and Emily was happily settled and in her last year of primary school.

Rachel announced that she had purchased a new home for her and Emily, in a smaller town two hours drive away. She told Mark that she would still facilitate his time with Emily, by meeting him halfway every second Friday and Sunday, and the same again for his holiday contact periods.

Emily was greatly opposed to the move. She wished to go to the local high school with all her friends. Mark’s preference was that Rachel remained living with Emily in their current town, but as an alternative, proposed that Emily live with him and spend time with Rachel.

The court found in the interim that Mark’s work roster would not allow him to provide as much personal care of Emily as Rachel currently did, and would continue to do, in the new town.

It also found that the distance wasn’t so great as to endanger the continued relationship between father and daughter (and indeed Mark did not seem greatly perturbed by the two-hour round trip). The decision said that while much weight could be given to Emily’s wishes, her interests were best served by remaining with her mother.

So we can see that in this case, the court found that the benefits of Emily remaining in the predominant care of her mother, despite the move and despite Emily’s opposition, outweighed the drawbacks, especially as Emily wasn’t going to be losing time with her dad.

Generally speaking, the court will consider issues such as:

• the best interests of the child

• the benefit to the child of having a meaningful relationship with both of their parents

• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

• 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

• the distance the parent wishes to move (and what impact that will have on the child’s relationship with both of their parents)

• the capacity of both parents to properly care for the child

• the child’s wishes.

Going to court on relocation matters is often very expensive—it can cost well over $40 000 per party, with no guarantees as to outcomes. As always, giving mediation the very best shot you can, and being open to compromise, can save you a lot of time and stress. Sometimes, however, no matter how willing to compromise you are, your ex just won’t—and in these cases, going to court becomes inevitable.

Mediation

In family law matters in Australia, the word ‘mediator’ has been replaced with ‘family dispute resolution provider’.

As lawyers, we like acronyms and can have lengthy conversations made up entirely of acronyms. However, our loved ones have pointed out that no one else can understand us and we sound like total idiots (although we think the technical word they used was ‘tossers’). So in the interests of not using four words when one commonly understood word will do, or even worse, using an acronym—FDRP—we will just use the word ‘mediator’.

Going to court for parenting matters generally only happens after you’ve been to mediation that either was not successful or only partially successful. This is because usually you need a mediation certificate (called a section 60I certificate) from the mediator to say that, in their opinion, you have tried but there’s not much chance of the two of you reaching an agreement, or that the matter was not suitable, or one party refused to go.

A mediator has to be satisfied that a matter is suitable for mediation, and in parenting matters, they look at factors such as:

• a history of family violence, if any (and see the Glossary), among the parties

• the likely safety of the parties

• the equality of bargaining power among the parties

• the risk that a child may suffer abuse

• the emotional, psychological and physical health of the parties

• any other matter that the mediator (and see the Glossary) considers relevant to the proposed family dispute resolution.

Do not refuse to go to the intake (which is the legal term for the first appointment with the mediator or mediation service), as there could be serious consequences for you later if your ex asks for costs. This is where you are forced by law to pay the costs of your ex if you lose or vice versa. It can end up costing you a lot of money (that’s why we call it costs, ’cause it’s gonna cost ya).

An intake appointment is just you and someone from the mediation service, so your ex will not be there. This appointment is where you let the mediator know if there are any barriers to negotiating freely with your ex, so the mediator can assess whether the matter is suitable for mediation or not. The mediator may suggest that the matter is suitable for mediation only on the condition that it is telephone mediation, ‘shuttle’ mediation or if a support person is present.

It is actually quite amazing what a skilled mediator can achieve. Rebekah has gone into mediations where the parties are so far apart in what they saw as an acceptable outcome that she thought negotiating Middle Eastern peace would have been an easier way to spend the day. But an experienced and patient mediator can perform near miracles, and going into mediation with an open mind can be a helpful starting point. You never know, you and your ex may both have a sudden attack of the reasonables, and finalise all the major decisions then and there.

Private mediation can be expensive (although not as expensive as going to court—and see more on court fees in this chapter). Generally, you and your ex will be expected to split the costs, which can be up to $5500 a day (for a six-hour mediation) if you use a private mediator.

You can also use a publicly subsidised mediation service, through the federal government’s Family Relationship Centres, which provides one hour of meditation free, and two hours after that for $30 an hour (some income tests apply). Family Relationship Centres can be found at www.familyrelationships.gov.au/Services.

Types of mediation

Face to face

If you and your ex get along fairly well and there has been no violence or abuse in the relationship, face-to-face mediation can be invaluable. Sitting down and working through issues with a trained mediator usually means that outcomes are not only suitable for both parties (or both parties can at least live with them) but the co-parenting relationship is at best strengthened and at worst not destroyed utterly. Parties can get stuff off their chests that bothers them, in a respectful environment, and this can include issues that will not be ventilated in court because they are not of any interest to anybody in a courtroom setting.

Usually face-to-face mediation will follow the National Mediator Accreditation System (NMAS) practice standards and include:

• intake (which is an introductory session where you get to cry and gnash your teeth and wail, and then pull yourself together as best you can)

• a joint session where the mediator lets you all know why you are there

• opening statements by the parties

• agenda-setting by the parties

• private sessions

• exploration of agenda

• generating solutions

• finalising the agreement.

Telephone mediation

This can work really well, as it lets both parties process information without the stress of the other party being physically present. It also lets parties who live far apart from each other mediate, and caters for parties who live in remote areas without other mediation services. The Family Relationship Advice Line can organise telephone mediation.66 The telephone mediation process is much the same as the face-to-face process, just on the telephone. Some private mediators are offering Skype mediation as well.

Shuttle mediation

This is where the parties are in a separate room for all or for the majority of the mediation and the mediator goes between the rooms. It’s a great option if you’re really not comfortable being in the same room as your ex, especially if they have a tendency to try to bully you, or if you just don’t particularly want to spend six hours sitting across the table from them. In some ways, shuttle mediation can be even more effective than face to face because the mediator, not you, is relaying your responses, which takes a lot of the emotion out of the whole thing.

Facilitative

This is a structured mediation style where the mediator acts as a kind of referee rather than providing options to the parties or giving an opinion on the options generated by the parties. The NMAS sets out a highly structured way of conducting mediations, which usually goes like this:

Mediator’s opening statement

The mediator firstly talks about why you are here. The mediator sets out the rules (such as no talking over each other and no threatening each other, most of which are ignored in the first three minutes and then have to be restated again and again), the limited circumstances where information from a mediation may be used against you (such as if you disclose that you’re divorcing your ex because they literally murdered someone), the confidentiality of the mediation, how to make a complaint about the mediator, how any agreements can be formalised and where the toilets are, and if you have to evacuate, whether it’s on the whoop whoop or on the beep beep.

Parties’ opening statement

This is where you get to tell the mediator and each other why you are here and what you actually want. It helps to have thought about that before you go to mediation. The mediator will adopt LARSQ, which is an awesome acronym (so exciting!) and means listening, acknowledging, reframing, summarising and questioning.67 The mediator will listen to you, acknowledge the issue you wish to discuss, ‘reframe’ your words, summarise the issue and check with you they have it right.

Reframing is a bit of an art and a good mediator will work out from your statement what the issue is that you want to resolve and then make it a neutral statement, so that it is capable of exploration and hopefully resolution. For example, ‘She won’t let me see the kids because she’s nuts’ may be reframed as ‘What I hear from you is that you want to work out arrangements for the children to see each parent’ and ‘Well, he isn’t coming to get the kids from my house because I don’t want to see him ever because I hate his guts’ may become ‘What I hear from you is that you want to work out how changeovers can be less stressful’.

The mediator may then identify any common ground between you both. Unless that common ground is that you both hate each other.

Agenda setting

Work out what issues you want to try to resolve during the mediation and this could be things like ‘When will our children, Jack and Jill, see each of us?’, ‘What school should they go to?’ or ‘How do we sell the house?’, and ‘When will they go up the hill?’. Each party is given a chance to choose the order of the agenda items.

Exploration

This is the scary part for mediators—where you let the parties talk to each other about the issues. In facilitative mediation the mediator acts as a referee by reminding parties not to talk over each other, stepping in to ‘reframe’ statements if they are getting too emotional, and reminding parties that they are there to try to resolve issues, not yell at each other.

It can be a difficult transition from lawyer to facilitative mediator, as the temptation is to jump in to give parties solutions. A good facilitative mediator will remember that the parties are there to work out their own solutions for their own children or property, not to have a solution imposed on them. As long as the discussion is not becoming abusive, it can be helpful for the parties to have their say in a safe environment. The mediator may have to again remind the parties about the agreed rules and reframe statements or bring parties back to the point. A mediator may say, ‘I hear that you are very upset about this incident, but let’s refocus back onto how to make things better in the future’.

The mediator might have private sessions with you both at this stage, to check in with you and to further explore the issues with you privately. The mediator won’t (can’t) tell your ex what you are saying in these sessions.

Options

The next step is to start to generate options; the mediator may help you both think about how options could practically work. (Apparently mediators are not allowed to say, ‘That’s the stupidest idea I have ever heard, are you actually serious?’ Instead they have to say, ‘So, how practically do you see that working in the future?’)

Private session

The mediator may have a private session with you and a private session with your ex at this point. Again, to check in and to help work out if there are any stumbling blocks.

Negotiation

You and your ex now try to negotiate on the options you have come up with. The mediator’s job is again to be the referee and to try to get you talking to each other rather than through the mediator.

Agreement … or not

Many mediations are successful and result in an agreement. Family Relationship Centres can generally only draw up a parenting plan and you may both go and get legal advice at this point. It can be frustrating to have the other party go back on an agreement made in mediation but everyone has the right to get advice.

In a private mediation the mediator and lawyers may get together to formalise the agreement into a parenting plan, consent orders or a binding financial agreement (for property).

If you have agreed to split super (more on that later), you will need to first give the super fund a chance to suggest changes to the orders before you send them to court.

Evaluative mediation

In evaluative mediation, you have a mediator with a particular expertise who can not only facilitate the parties, negotiating, as with facilitative mediation, but may also give a view of each party’s case. Using a former judge or a highly experienced lawyer as a mediator can be a good way to help parties come to an agreement together. Having someone experienced give you a reality check can be confronting but ultimately helpful. The mediator could remind you (and possibly your lawyer) of the high costs, delays and uncertainty of litigation.

Transformative mediation

In The Promise of Mediation, Robert A Baruch Bush and Joseph P Folger put forward the idea of transformative mediation, where the two main goals are to empower the disputing parties, and to enhance each party’s recognition of the other.68

Why would I use a private mediator when the public mediator is so much cheaper?

While there are sixty-five Family Relationship Centres currently open across Australia, including lots in rural and regional areas, you may not be able to find one that’s convenient for you. Or, you may find the waiting lists are too long and you need your matter dealt with sooner than you can get in (some of the centres have very long waiting lists, and you may need an urgent mediation conference as a last-ditch effort to resolve an issue, such an agreement to take the children overseas for a family wedding).

Some people prefer to choose their own private mediator, who may specialise in things like very high-conflict divorces, or very high-value property pools (complete with lots of trusts, companies and self-managed super funds that may or may not be in a mess), or who have specialist backgrounds such as training in issues facing separating couples whose children have special needs.

Some mediators are psychologists rather than lawyers and this can be very helpful when conflict arises because of a teenager refusing to do what their parents want them to do (in other words, being a typical teenager) or because parents simply need assistance in working out what arrangements will suit a very young child, or a very upset child.

As mentioned, some mediators are experienced lawyers, former Family Court or Federal Circuit Court judges or court registrars and can provide an evaluative style of mediation, where the mediator provides their opinion on the competing proposals. This can be extremely helpful, as parties get a third, independent, opinion from a highly experienced professional. The mediator can challenge the parties and this can be very helpful as it is easy for parties (and their lawyers) to become entrenched in their positions, or to forget that while they may really be entitled to another $20 000, a fully litigated hearing may cost them $40 000.

Registrar—a court lawyer who can do things such as grant divorces, mediate at conciliation conferences, sign consent orders and decide the next step in a case.

You cannot have a lawyer attend a Family Relationship Centre mediation with you. In complex cases, it can be helpful to have your lawyer with you, which is why people with difficult matters often choose a private mediator.

Having your lawyer with you at mediation can be helpful, as the lawyer can provide advice regarding advantages and disadvantages of options put forward by the other party, and can help you formulate options yourself. The lawyer should be thoroughly prepared and usually a mediation position paper would be prepared and sent to the other side, and the mediator. The mediation position paper sets out what you want and why (using actual legal principles not just what Aunt Betty thinks because she watches Judge Judy a lot).

My ex refuses to go to mediation, or refuses to go to the mediator I suggested

It’s pretty ironic when things are so far gone that you can’t even get your ex to agree to the mediator. One man we know faced an almighty battle to get his soon-to-be-ex-wife to agree to go to mediation, and when he offered to pay as a way to help, she claimed that this was ‘proof’ of some kind of dastardly plot, and that he had chosen one of his mates as the mediator so as to trick her.

Mediation sounds all very well and good in principle but in practice, just the simple act of choosing a mediator can lead to horrible and stressful fights. It’s funny (and not ha-ha) that you once decided together to get married, have babies and buy houses, and now you can’t even agree on a mediator.

If you’re going public, great—this is usually much easier (unless your ex thinks you’ve somehow gotten the federal government on board in your conspiracy against them). If you’re using a private mediator, and your ex won’t agree to them or is stonewalling (refusing to engage), then choose three that you’d be happy to go to, and ask your ex to make the final decision from those three. If they won’t do that, ask them to put forward an alternative proposition within a specified timeframe (so, within three days). People who are being unreasonable find it quite difficult to continue to be unreasonable when they’re given a choice of reasonable options.

I feel threatened by my ex and don’t want to go to mediation

If you feel threatened, speak up. Tell the family dispute resolution provider, who will do an assessment at your private intake session of whether the matter is suitable for mediation, or suitable only with safety measures in place, such as having the parties in separate rooms with the mediator going between them (shuttle mediation).

If mediation fails, the next step can often be the commencement of a litigated matter. This means … court.

Commencing legal proceedings

On average, about 5 per cent of all family breakdowns or disputes over things like relocation end up in the Federal Circuit Court or the Family Court. You end up in court when you can’t agree on matters such as what arrangements will be made for your children, or how your property will be divided. The family courts have been starved of funding in recent years, and so very lengthy delays are not uncommon. It’s quite usual for a matter to take between one to two years to be fully resolved.

As we’ve discussed, most matters go through the Federal Circuit Court. The Family Court is reserved for matters that are likely to be complex and need more than two days of trial, for international matters, and matters involving allegations of serious sexual or physical abuse (more on this below).

It usually comes as a surprise to find that you most likely will not have just one hearing, you may have a number of hearings before the trial or final hearing. After that there may be an appeal or proceedings about costs.

Usually after mediation, if matters have not settled, the following process will take place:

1. Notice of issues and future intentions

Either your lawyer or your ex’s lawyer will send the other lawyer a written notice of issues and future intentions. This just really serves to get the ball rolling, and to start the process of going to court. A notice of issues and future intentions sets out what one side of the matter considers to be the things in dispute, and says what they are going to do about it (which is probably taking someone to court).

2. A reply to that written notice will be sent

This is pretty much the grown-up version of ‘I know you are, but what am I?’

3. One of the sides will make an application to the court, which will be served on the other party

Once the application is filed with the court (either with the registry or online) it will show the case number and the date of the hearing. If the application is filed online, you can generally choose which date the first hearing will be on.

The application must be personally served on the other party, so this means that if they do not cooperate and there is a chance that they will not put in a response and turn up to the court date, the application must be served by a process server, which costs money.

The vast majority of matters are started in the Federal Circuit Court. Usually only the following matters are filed in the Family Court:

• international child abduction

• international relocation

• disputes about which country a matter should be heard in

• special medical procedures (such as gender reassignment and sterilisation)

• contravention and related applications in parenting cases, concerning orders that have been made in Family Court proceedings that have reached a final stage of hearing or a judicial determination and have been made within twelve months prior to filing

• serious allegations of sexual abuse of a child or serious family violence

• complex questions of jurisdiction or law

• matters where a trial will probably take more than four days of hearing time.69

The Magellan ‘list’ is a program for matters where there are serious allegations of physical and sexual child abuse.⁷⁰ In these matters there is a single judge who makes sure that the matter progresses and does not get bogged down and delayed.

This can include:

• early appointment of an independent children’s lawyer and a family reporter

• establishing greater cooperation between the court, the independent children’s lawyer and state-based child protection services, such as Child Safety Services in Queensland or Family and Community Services in New South Wales.

Independent children’s lawyer—a lawyer appointed by the court, and usually paid for by Legal Aid, to represent a child’s interests in a matter in the Federal Circuit Court or Family Court. The independent children’s lawyer will meet with the child, if appropriate, and gather evidence by way of subpoenas, family reports and psychiatric assessments. The independent children’s lawyer is a party to the matter. Legal Aid will seek a contribution to the costs of the independent children’s lawyer from you if you have the means to pay.

4. A response to the application is filed with the court and served on the applicant

The rules of the court say that this should be done within fourteen days. Usually having the response within fourteen days doesn’t happen and sometimes we are lucky if we get the response the day of the first hearing.

Rules—a set of directions that outlines court procedures and guidelines. The rules of the Family Court are the Family Law Rules 2004 and the rules of the Federal Circuit Court are the Federal Circuit Court Rules 2001.

Applicant—the person who applies to a court for orders (which means a decision is made and then turned into legally enforceable orders).

5. Opportunity to settle

Often, once the parties both file their material with the court, they realise that they are not really fighting over that much and suddenly the reality of having to pay their solicitors to go fight about not much hits home. Many matters settle here, either with consent orders emailed to the judge’s chambers or handed up to the judge on the first hearing date. In family law, this is known as ‘having an attack of the reasonables’, and it’s where many, many matters end.

Even if parties can’t agree on final orders, they can sometimes agree on such orders as exchanging financial documents, going to mediation, having property valued and getting a report from a family consultant about what is in the children’s best interests. Of course, this all should have been done in the pre-action procedure, but there is nothing like a court date to focus people’s minds and make them suddenly decide not to fight to the death over two extra nights a month. Court is scary and stressful and it’s all deeply unpleasant, and if it can be avoided, then it should be.

6. Mention or directions hearing (or possibly procedural hearing)

Usually there are a number of mentions (otherwise called directions hearings or procedural hearings) where parties let the judge know what is going on and whether any procedural orders need to be made. Procedural orders can include orders that a family report be prepared or a psychiatric assessment be done on one or all parties. There can be a lot of mentions and this gets expensive. In the Federal Circuit Court, mentions are usually on duty list days where a judge may hear thirty-plus matters, so the back of the courtroom will probably be packed.

Procedural order—an order made by a court of a practical nature. For example, the court may order the parties to attend family dispute resolution.

7. Interim hearing

If the matter does not settle before court or on the first day of court, then depending on how many other matters are listed to be heard by your judge that day, and how urgent the issues raised by your case are, you may have an interim hearing. An interim hearing is not like court hearings that you see on TV, as usually parties do not give formal evidence, although the judge may wish to ask you questions. The judge may also wish to warn you about how expensive, time-consuming and horrible court is. (At this juncture feel free to roll your eyes and mutter, ‘We get it!’ under your breath—just don’t do that to the judge. We know we’ve laboured the point on how horrible court is.)

Court hearing—the date and time when a case is scheduled to come before the court.

Interim hearings can involve issues such as where a child will live until an actual trial, whether a family report should be obtained, whether a psychiatric assessment of one or both parties is necessary, whether one or both parties should submit to drug testing, whether a property should be sold or not, whether there are more financial disclosure documents to be exchanged and whether interim disbursements should be made.

Usually in interim hearings, witnesses do not get into the witness box and do not get cross-examined (put in the witness box and asked questions by the lawyers); rarely, the judge will ask for this to happen. The lawyers (or self-represented litigants) will make ‘submissions’, which are legal arguments to support their case, referring the judge to available evidence—for example, in affidavits or family reports. Since witnesses are not cross-examined, judges usually cannot make a decision about whether someone is lying or not—this is generally a matter for the trial (otherwise called a final hearing), where witnesses will be cross-examined at length.

Following on from the interim hearing, interim orders may be made on a variety of issues, such as to attend mediation, as to where the child will live, and any other issues that can’t wait until the final hearing.

7. Further opportunity to settle

After the interim hearing, a matter may go back to mediation, or go to a first mediation, and parties will keep negotiating. Sometimes orders will be made that parties go off to parenting orders programs or joint post-separation counselling. These can be really helpful. Joint counselling in particular can be very useful in helping calm warring parents down and letting them explore issues that are preventing them from co-parenting. Exploring and trying to resolve issues with the help of a counsellor or psychologist can be preferable to having the issues ventilated in a court. There is nothing quite as humiliating as trying to explain to the other parent’s barrister in front of a judge why you could not return uniforms or lunchboxes, or just had to send that nasty text.

One party or both parties may ask the court to issue subpoenas to third parties such as the police, doctors, psychologists or the ambulance service. These third parties then must give copies of notes, reports and the like to the court, and the parties (or more usually their solicitors) can read them in court. Usually they are either read by or provided to the family consultant.

Subpoena—a document issued by a court, at the request of a party, requiring a person to produce documents and/or give evidence to the court. You learn to spell it by spelling it out sub-po-ena but it’s actually pronounced sah-pee-na.

8. Mention or a directions hearing

After the parties have had the chance to consider things like financial disclosure documents, material from third parties, reports from property valuers or family report writers and psychiatrists, the court may bring the matter back for a mention or directions hearing. Some judges like to do this a few times, just to give parties the opportunity to settle, or to make sure they really, really mean to go to trial.

9. Trial directions

After one more mention/directions hearing, the judge will then make trial directions and each judge seems to like different trial directions. Trial directions include filing and serving trial affidavits, which usually updates all of the previous affidavits. It can be tempting to have everyone who has ever met you do an affidavit saying what an all-round awesome person you truly are, but this is not a good idea and can lead to a judge either bumping the matter to the Family Court or making a costs order against you for bringing a bunch of irrelevant issues to court.

Going to trial

Okay, so you’re going to court. You’ve done all you can within reason to settle, and you, or your ex, have determined that the only way forward is to go to court to ask the judge to resolve your issues for you. It’s a pretty intimidating environment. Here’s a heads-up on what to expect.

Who are all these people in court?

In the courtroom may be:

• your lawyer, who will tell you where to sit. Generally you will sit just behind your lawyer, who will be sitting at the ‘bar table’ (which is the long table in front of the judge’s ‘bench’)

• your barrister, if you have one

• your ex’s lawyer and/or barrister

• other litigants, their friends and family, and lawyers and barristers waiting for the next matter, who sit at the back of the court

• friends and family of yours and/or your ex may also sit at the back of the court, although if they are likely to be witnesses, they may be asked to leave

• law students who may be interning at the court

• the court reporter, who keeps a transcript of the court’s proceedings (who said what)

• your ex

• the independent children’s lawyer (ICL), if your child/ren has one, who sits in the middle of the ‘bar table’

• child protection workers, if necessary

• the judge, or registrar (who may already be hearing another matter)

• the judge’s associate (a lawyer who helps the judge run their matters and helps with writing the decision)

• the court support officer, who helps people appearing in the court

• the family report psychologist, who will have written the family report, if applicable

• the tipstaff, who helps support the administrative running of the court.

Transcript—a record of the spoken evidence in a court case, which the court reporter types up. All court hearings are recorded, except in uncontested divorce hearings. The court doesn’t order transcripts in every case and doesn’t provide transcripts to parties. If a party orders a transcript, they will have to pay for it themselves (unless and until you get costs awarded, yay).

What’s the difference between a solicitor and a barrister?

About $5000 a day, mainly.

Just joking. Sort of.

A barrister is a specialist advocate who predominantly appears in court to argue cases on behalf of clients. They are ‘instructed’ (told all about the case) by solicitors. Barristers are experts in ‘advocacy’, which is getting up and arguing with each other in front of a judge.

Barristers refer to solicitors as ‘book carriers’ and solicitors refer to barristers as ‘tossers’.71

What is the difference between a registrar and a judge?

About $300 000 a year in salary, mostly.

Not joking.

Registrars are ‘court lawyers’ and in the Family Court, they manage matters before they get to a judge. Things like case assessment conferences (the first major event in the Family Court in property cases), conciliation conferences (mediation) and procedural hearings are managed by registrars. Matters are handed over to the judges when they get more serious.

Conciliation conferences are mediations where a registrar from the Family Court or Federal Circuit Court is the mediator. Having an experienced court lawyer to facilitate negotiation and also offer an evaluation of the case is extremely valuable. The registrar can also make the orders if an agreement is reached (unless there is a superannuation interest to be split, as the super fund has to be given a chance to comment first—in this case a document called ‘heads of agreement’ can be drafted; these are basically orders that can be made once the super fund has its say).

How much to go to court?

The fees payable in the Family Court or in the Federal Circuit Court are set by the federal government, and often change. By way of example, as at October 2017, the following fees were in place:72

Family Court

Application for consent orders	$160
Application for a decree as to nullity (divorce)	$1225
Reduced fee for divorce (available to low-income earners)	$410
Application for annulment of marriage	$1225
Initiating application (parenting orders or financial orders, final only)	$445
Notice of appeal to the full court (including from Federal Circuit Court)	$1305
Issue of subpoena	$55
Setting down for hearing fee	$825
Daily hearing fee	$825
Conciliation conference	$380

Federal Circuit Court

Application for divorce	$865
Application for divorce—reduced fee (available to low-income earners)*	$290
Initiating application (parenting orders or financial orders, final and interim only)	$330
Issue subpoena	$55
Setting down for hearing fee	$605
Daily hearing fee	$605
Conciliation conference	$380

* www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/family-law/guidelines-for-reduced-fee-divorce-and-decree-of-nullity-application.

As you can see, the Federal Circuit Court is quite a bit cheaper than the Family Court, but it’s still a very expensive process. These costs are on top of what you’re paying your lawyer, but your lawyer will generally pay the court fees up front, and you will pay them back as ‘disbursements’ (money the lawyer has paid on your behalf that you owe), or your lawyer will pay them out of the trust account.

What do I need to be aware of in court?

Try to arrive at least half an hour before the time your matter is listed. Often it can be hard to find the hearing room and you want to give yourself plenty of time so you’re not flustered. Your lawyer may also ask you to come earlier to have a conference about the case or to fill you in on any last-minute issues that your ex’s lawyer (the other side) may have raised.

When you enter the court and it is already in session (when the judge is seated at the bench and the lawyers are talking or listening to the judge), you should briefly pause at the door and nod your head to the judge.

If you need to leave the courtroom and the court is in session, again pause briefly at the door, and nod to the judge as you leave. This is considered good courtroom etiquette and is how you show respect to the judge.

Do not have your mobile phone on in court, but if you must have it on, have it on mute and don’t answer it in court under any circumstances. Being told off by the judge because your phone rings, or worse, because you answer it, is horrible.

If you are in the courtroom before the judge has entered, the judge’s associate will announce the judge’s entrance by saying, ‘All rise’. At this point you must stand up, even if you are just sitting in the back of the courtroom. The judge will enter the room, and once he or she has sat down, you must also sit down. Don’t sit down before the judge does. Each time the court adjourns, you must stand. The court officer will say, ‘All rise’ or ‘Please stand’.

Adjourn—change or postpone a court event (i.e. any time you or your lawyer has to go to court for your case) to another day or time.

Judges and barristers in the Family Court wear ‘robes’, which are long gowns. It might look silly but it serves an important function—it differentiates a judge from a normal person, and it’s been shown that when judges and barristers aren’t robed, there are significant increases in the rates of violent acts committed against them. In the Federal Circuit Court, judges are robed and barristers can choose to be robed or not.

You must also remove your hat (unless it is a religious head covering, which includes a colander if you are an adherent of the Church of the Flying Spaghetti Monster) and your sunglasses (including off the top of your head—unless you’re Bono).

Can my children come to court with me?

No, unless they have been ‘called’ to give evidence. This almost never happens as children do not belong in court. If, in a very unusual case, a judge does want to talk to the children, this is done in the judge’s chambers or with the family consultant.

Courts are very, very boring, and you must be quiet the vast majority of the time, and there will be lots of evidence being heard about sensitive matters. This is why it’s not appropriate to bring your children. You must make other arrangements for their care, and be aware that even a brief ‘mention’, where your case is being ‘mentioned’ to the judge, can be delayed and delayed and it can take all day. There can also be a number of mentions, particularly if parties are waiting for things (such as a family report or counselling).

If a judge discovers that your children are sitting in the back of the courtroom, even if the children are not actually hearing solicitors tell the court how awful their parents are, you can expect the judge to be very unhappy and possibly draw some conclusions about your capacity to parent. The only exception to this is if you have a small baby and you’re breastfeeding, in which case talk to your lawyer about how you should handle that issue.

Make sure your kids can be looked after from at least 8.30 a.m. to 5 p.m. (courts generally do not sit past 4.15 p.m., but sometimes they do and also your lawyer may wish to speak with you after the day’s proceedings). Don’t forget that you are probably going to be driving home in peak-hour traffic, so you may not make after-school care by 6 p.m.

What is an independent children’s lawyer?

An independent children’s lawyer (ICL) is a senior lawyer who is appointed by the court to represent your child’s or children’s best interests. A judge will make an order appointing an ICL after considering the matter, including the following factors:

• there are allegations of child abuse, whether physical, sexual or psychological

• there is an apparently intractable conflict between the parents

• the child is apparently alienated from one or both parents

• there are real issues relating to cultural or religious differences that affect the child

• whether the sexual preference of either or both of the parents or some other person having significant contact with the child is likely to impinge upon the child’s welfare

• whether the conduct of either or both of the parents or some other person having significant contact with the child is likely to impinge upon the child’s welfare

• there are issues of significant medical, psychiatric or psychological illness, including personality disorder, in relation to either party or a child or other persons having significant contact with the child

• based on the material filed by the parents, neither seems a suitable custodian

• a child of mature years (over about the age of twelve) is expressing strong views, giving effect to which would involve changing a long-standing custodial arrangement, or a complete denial of access to one parent

• one of the parties proposes that the child will be either permanently removed from the jurisdiction, or permanently removed to such a place within the jurisdiction as to greatly restrict, or for all practicable purposes exclude, the other party from the possibility of access to the child

• it is proposed to separate siblings

• none of the parties are legally represented and custody is at issue

• in applications to the court’s welfare jurisdiction relating in particular to the medical treatment of the child’s interests where they are not adequately represented by one of the parties.73

The ICL will gather evidence from reliable sources, including medical evidence relating to both the parents and the children. It can be very confronting for an ICL to be appointed to represent your children’s best interests, because as parents we generally believe that we know what’s best for our kids. It can be even more confronting when the ICL starts sending subpoenas off to your doctor, to hospitals, the police and your state’s department of child safety, or when the ICL requests that you undergo a drug test.

However, the ICL offers you the gift of a third party making recommendations to the court when you are too close to the matter, or too upset, to think straight. An ICL also offers you a buffer between you and your ex, so the recommendations aren’t coming from you. If your ex is especially incapable of being reasonable, they won’t have just you to blame if things don’t go ‘their’ way. They can blame the poor old ICL as well.

Case study—Fred and Karen

Fred and Karen had two children, Bill and Ben. Fred and Karen separated after having had a stormy relationship marked by frequent arguments, domestic violence and drug abuse.

When they first split up, Fred kept the children and refused to let Karen see them, claiming that Karen was ‘mental’ and a ‘druggie’. Karen made an urgent application to the court, and the judge ordered that an ICL be appointed. The judge also ordered that the ICL be able to request random urinalysis from the parties, and that the parties would have twenty-four hours to comply.

The judge also made an order that a family consultant provide an urgent report to the court.

When the ICL received the file, she asked the court to issue subpoenas to the police, to child safety, to the children’s schools and to the local hospitals. She also requested that both parents submit to a urinalysis within twenty-four hours and provide the results as soon as they were available.

The material produced under subpoena showed that the police and child safety department had been pretty involved with the family, with quite a lot of notifications over the years, involving drugs, violence and verbal abuse. The children’s school reports and attendances were dismal.

Karen’s urinalysis results came back clear, but Fred’s came back positive for methamphetamines. The family consultant recommended that the children live with Karen and spend time with Fred, supervised by Fred’s mother for the interim.

The ICL suggested orders that ensured both Fred and Karen underwent counselling with their own counsellors and that the boys also saw their own counsellor.

Fortunately, all this was a wakeup call for both Karen and Fred, who both worked hard with their counsellors. After about a year of counselling and after both Karen and Fred returned three negative drug tests, the ICL agreed that the boys could spend unsupervised time with their dad.

What is a family report?

A family report is a report that either you, your ex, the judge hearing your matter, or the ICL appointed to represent your children will request. It is prepared by a registered, accredited psychologist or social worker, and includes information about your home life, your ex partner’s home life, your children, you and your ex-partner, to help the court make a decision about your matter, on issues such as where the children will live and spend time with their parents.

The family report writer may interview you and your children separately, together, or both. They may speak with other people in your life, such as your new partner, your parents, or any other person they think plays a significant role in the lives of the child/ren. The report will be given to the court, the ICL (if there is one), you (or your lawyer if you have one) and your ex (or their lawyer if they have one).

You can’t really ‘prepare’ for your meeting with the family reporter. Just tell the truth and remember to be child-focused (so, focused on what is best for your child, not on how much you hate your ex) at all times. The meeting with the family reporter is not your opportunity to tell them about how badly you’ve been treated by your ex, even if that’s absolutely the case. Be the Sane Parent. Show that you can look to the future and that you can accept your children’s other parent will be in that future in one way or another.

There are two sorts of family reports—a section 11F report or a section 62G report. (Oh, how lawyers love talking in code and TLAs—three letter acronyms.)

A section 11F report, or child inclusive memorandum, is a short memorandum prepared by a family consultant—a social worker or psychologist who works for or is engaged by the court. It is usually only about three pages long (but can be longer) and deals with immediate, urgent issues such as whether a parent poses an immediate threat to a child.

A section 62G report is a longer, more in-depth report that can go for about twenty to forty pages and can include details of interviews with both parents, new partners, grandparents, teachers, principals, joint counsellors, children’s counsellors and doctors. It will also generally include interviews with older children and details of observations of the way that the children interact with parents, grandparents, step-parents and step-siblings.

Most report writers see you at their office, but some will see you at home, particularly if they wish to assess your home environment. There are a few things to be aware of:

• Everything you say can be used in the report—there are no ‘off-the-record’ conversations.

• Everything you do can be used in the report—right up to the rude gesture you made to your ex in the waiting room (or the rude gesture they made to you).

• Report writers can be very literal people, so if you say sarcastically, ‘Yeah, sure I hit my kids, all the time’, that can translate into the report as ‘Mother admitted to hitting her kids all the time’. If you say, in a moment of anger, ‘Well, why doesn’t she just have them all the time then?’, this can translate into ‘Father made a proposal that the children live with the mother’. You must try to be as careful and precise in the language you use as possible.

• Report writers aren’t on ‘your side’. You must remain calm and collected and child-focused at all times and resist the urge to use them as a counselling service. We have had many clients who have reported to us that the report writer was ‘really friendly’ and ‘seemed to totally get where I was coming from’ only for the report to come out saying that our client was manipulative and not child-focused.

• If you are making allegations of abuse against your child’s other parent, it is imperative that you are absolutely truthful, for the sake of your child. Don’t embellish. The smallest embellishment will be used against you. If you don’t know the answer to a question, don’t try to come up with one. Simply say, ‘I don’t know’. It is crucial that you remain child-focused at all times and that you don’t come across as simply trying to reduce your child’s time with their other parent because you don’t like them.

What do I wear to court or to family report interviews?

It’s very important that you turn up to court looking respectable and professional. There are no ‘rules’ as such, which can be confusing, and the Family Court (un)helpfully states ‘court is a formal place and you should dress accordingly’. Which really clears that up.

So here’s our take on it. Men should wear:

• long dress pants (not jeans)

• lace-up shoes with socks

• a button-up shirt, preferably with a tie

• a belt

• a jacket.

Women should wear:

• a skirt and blouse in muted colours (yes, we know, a blouse); or long pants and blouse, again preferably in muted colours such as black, white or grey

• a jacket (optional)

• neat, conservative closed shoes (such as court shoes)

• hair done neatly, such as in a ponytail or brushed away form the face.

Do not:

• have very visible tattoos on show

• wear high-vis gear

• wear very bold, bright colours (we once had a client turn up to a hearing in head-to-toe neon fuchsia—hat, gloves, suit, heels, handbag, lipstick and nails)

• wear clothes showing a lot of skin (leave the plunging necklines, thigh-high slits or mesh panels for a decent evening out)

• wear skyscraper heels, not least because you are probably going to be on your feet for a lot of the day as you wait

• wear clothes with obscenities printed on them (you’d be surprised—we once had a client show up to his DUI with ‘F**K THE POLICE’ written on his t-shirt, only it was written without the stars)

• wear ripped clothes, especially with the logos of alcoholic drinks on them when you are facing allegations of being an alcoholic (and again, you would be surprised)

• wear sunglasses on your head or your motorcycle helmet into the courthouse

• forget to wear shoes, even if you are a hippy and think that shoes stop your connection to the earth’s vibrations, or something.

You may think ‘I’ll turn up however I please’, and absolutely, you can. But if you want to get the best result for you, then dress neatly and professionally. It’s a courthouse, with a judge, and they are often very conservative people. By dressing neatly, and appropriately, you’ll give yourself the advantage of not letting anyone literally judge you on how you look.

Being cross-examined by your ex in court

It can be very distressing if your ex is self-representing and therefore has the opportunity to cross-examine you in court. If you’re in this situation, you should be aware that your lawyer will object, should the questioning be irrelevant or badgering. The judge can also step in and allow you to refuse to answer questions that are unnecessarily distressing. In such situations, however, you are really dependent on your lawyer or the judge to, in fact, step in.

Your lawyer may not object if they feel that the questioning is actually helpful to your case. The judge will be making their decision based on all of the evidence, including how you both look and what you both ask each other, or have your lawyers ask each other, when you are in the witness box.

Sometimes, your ex is your best witness. In one protection order matter, a client’s ex continually made faces at her when she was giving evidence. He also, charmingly, pushed his chair out as far as he could when she was walking to the witness box, meaning she had to pretty much climb over his knees. The magistrate saw all of this and was scathing in their judgment.

Under recent changes made to the Act, if you are a victim of domestic violence (even if it is thus far unproven), you will not be subjected to cross-examination by the alleged perpetrator. However, this is cold comfort to those who are not in that category, and still have to face their ex staring them down from the witness box.

How is a decision made?

After hearing all the evidence and considering the reports of any experts, the judge will reserve their decision. The written part of a decision, where the judge writes up the reasons for it and the orders they are making, can take some time. Orders come after the decision has been made. Sometimes this takes weeks, sometimes it is months. That’s why it’s so important to try to ensure that any interim decisions (formal or otherwise) are something that you can live with, because they will be in place for some time.

And if you or your ex don’t agree with the decision of the judge because you think they have made a mistake in law or in fact, you can appeal the decision to a higher court. This is not a chance to argue your case again.

Appeal—a procedure that allows a party to challenge the decision made by a court, in a higher court. It takes a long time and costs a lot of money to appeal a decision. There is also a risk that a party will have to pay the costs of the other party if an appeal is unsuccessful.

For appeals from a decision of a judge of the Federal Circuit Court, once the appeal is filed the chief justice of the Family Court makes a decision about whether the appeal will be heard by a single judge or three judges. For the Family Court of Australia, you appeal to the Full Bench of the Family Court of Australia. The next court of appeal is the High Court.

An appeal doesn’t mean you don’t have to comply with the order that was made in the decision you’re appealing. You still have to comply, unless new orders are made, either after the appeal is heard or the previous orders being stayed until the appeal is heard.

I spend all my time in my lawyer’s office crying—how can I stop?

Don’t worry too much about this. Family lawyers are used to clients crying. It’s an occupational hazard and we have boxes of tissues everywhere. You’re talking about the division of your property and the custody of your children—we expect you to be a bit emotional.

However, you also don’t want to waste your time and money crying. A good way to get through it is to have a clear idea of what you want to discuss. This is where the worksheet that goes along with this chapter, and the one in the previous chapter, can come in handy. If you have a structured plan of what you want to talk about, this can allow you to concentrate on what’s important.

We know it’s an ordeal, and we’re sorry you’re going through it.

 

WORKSHEET 5

QUESTIONS FOR MY LAWYER ABOUT ARRANGEMENTS FOR OUR CHILDREN

This worksheet is an opportunity for you to jot down any questions you have for your lawyer before you go into the meeting or teleconference, and a space for you to make notes of the answers. This can be helpful if you are quite upset, or if you’re stressed at the time of the meeting, because you can easily go back over your notes afterwards. It’s totally normal to find these discussions extremely upsetting, and very often people cry, a lot. Don’t worry about it, we’re totally used to it (we’ll just charge you for the tissues).

Date:	Date:
Questions for my lawyer about arrangements for our children	Answers
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

42 Section 61DA Family Law Act 1975.

44 Section 61B Family Law Act 1975.

45 Section 4, Family Law Act 1975.

46 MRR v. GR [2010] HCA 4, http://eresources.hcourt.gov.au/showCase/2010/HCA/4.

47 www.emeryondivorce.com/parenting_plans.php.

48 Legal offices are called ‘practices’ and lawyers don’t work in law, they ‘practise’ it. This is because nobody can ever perfect law, we’re all just still learning, and it’s not a science, there are no absolutes. Not very comforting, is it?

49 www.legalaid.nsw.gov.au/__data/assets/pdf_file/0008/9737/Parenting-Arrangements-for-0-to-4-year-olds-September-2011.pdf.

50 Adapted from Federal Magistrate Robyn Sexton’s ‘Parenting arrangements for 0–4 year age group’.

51 Bruce Smyth, Catherine Caruana and Anna Ferro, ‘Fifty/fifty care: Parent-child contact and post-separation parenting arrangements’, The Australian Institute of Family Studies, Research Report No. 9, July 2004.

52 Barnes & Abbey [2010] FamCA 1365 (3 December 2010) (paragraph 19).

53 Calling your ex’s new partner names is not exactly being the Sane Parent, as tempting as it may undoubtedly be.

54 www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/court-orders/parenting-orders-obligations-consequences-and-who-can-help.

55 Which is not in a Hague Convention country, just FYI.

56 Koyroyshs & Koyroyshs [2016] FamCA 1046 (7 December 2016) (paragraph 20).

57 Gillick v. West Norfolk and Wisbech AHA [1985] UKHL 7.

58 Secretary, Department of Health and Community Services v. J.W.B. AND S.M.B. (Marion’s case) [1992] HCA 15; (1992) 175 CLR 218.

59 Section 49 (2) Minors (Property and Contracts) Act 1970 (NSW); Section 6(1) Consent to Medical and Dental Procedures Act 1985 (SA).

60 Makita (Australia) Pty Ltd v. Sprowles [2001] NSWCA 305 (14 September 2001).

61 Makita’s case.

62 www.theguardian.com/lifeandstyle/2008/jul/24/familyandrelationships.newzealand.

63 ibid.

64 www.news.com.au/lifestyle/parenting/babies/victorian-government-releases-list-ofbanned-baby-names/news-story/8a2f110daf7de8800ca555dbc48e47cc.

65 In the marriage of Chapman, AL & Palmer, RJ [1978] FamCA 86.

66 www.familyrelationships.gov.au/Services/FRAL/Pages/default.aspx.

67 In the marriage of Chapman, AL & Palmer, RJ [1978] FamCA 86.

68 www.colorado.edu/conflict/transform/folger.htm.

69 www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/policies-and-procedures/protocol-for-division-of-work-fcoa-fcc.

70 www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/family-violence/child-abuse-allegations/child-abuse-allegations.

71 That’s only because we’re jealous of their awesome wigs and gowns.

72 Taken from www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/feesand-costs/fees.

73 Re K (1994) 17 FAMLR 537.