De facto relationships are now recognised under the Family Law Act and in many other legal frameworks and jurisdictions in Australia and internationally.
No different to if you have children with one another and are unmarried, you will still bears the same rights and responsibilities as you would regardless of whether you are legally married to their parent.
The only real benefit, per se, of marriage, is that you can more readily evidence your lawful connection to their biological parent. Practically, however, it doesn’t mean much else.
The important thing is the role you play in the lives of those children, by being a caring, safe and kind adult when you have them with you.
If your partner dies, and your stepchildren were in their primary care, what happens?
This is a complicated legal matter because there is no one, simple, straight path to the answer.
The outcome will rely on considerations under family law, succession law and potentially child protection and domestic violence laws, depending on the parents and circumstances involved.
Things that can factor into what happens to children when their primary parents passes away are:
Whether their other legal parent is still alive;
Whether that other parent would be willing and able to care for the children;
Whether there are family law orders already in place and what they say;
Whether there are child protection orders in place around the other parent;
Whether there are domestic violence orders in place around the other parent;
Whether the deceased parent had a Will;
Whether the deceased parent had appointed a guardian under that Will; and
What care arrangements would be in the children’s best interests.
There are instances in which you may have been one of the primary carers of the children, the Will appoints a different guardian, and the other parent who was estranged will come out of the woodwork.
The main thing to remember is that none of these people will have an automatic right to primary care of the children and that all parties will need to work through the necessary legal processes to have parental responsibility or legal guardianship rights appointed to them.
Although the other parent may hold prima facie legal rights according to their name appearing on the birth certificate, they may be prevented from having contact with the children under other court orders.
You may have been a primary carer, but perhaps you have a poor relationship with the children, or it is only new and recent and they were previously very close and connected with another person.
The guardian under the Will may not want to have care of the children as their circumstances have changed since the Will was drafted many years ago.
The best course of action is to seek urgent legal advice around your specific situation so that you can determine the most appropriate path for you and the children involved, prioritising the needs and interest of the children, who have just lost a parent, at the forefront.
Separation and divorce are ‘par for the course’ in today’s society.
Some people are guns and birdie it. The rest of us are probably putting our way to double bogies.
If you don’t get the golf analogies, then simply put – you are just as likely to split up from your partner as you are to stay with them until death do you part.
Many people will do this more than once.
That’s what lands us in the role of stepparents. That’s what creates the ever growing trend of blended families.
In some instances, you will have no reason or desire to maintain contact with your stepchildren. And there is nothing wrong with this.
For those of you who do, however, you need to know your legal rights to seek this.
In a perfect world, you will speak with your former partner about why you want to remain connected to their children, and they will be willing to facilitate this (or agree, at least, if the children are older and able to maintain contact with you themselves).
In an otherwise than perfect world, the legal consideration is two fold:
Do you have a genuine interest in the care, welfare and development of the child?
Is it in the child’s best interest to maintain their relationship with you?
Let’s say you saw the child every other weekend, for the last couple of years. This is your connection with the child.
You didn’t take them to school, help them with homework, cook them meals, or celebrate big events with them. Maybe you went to a birthday once, and had one Christmas with them. Maybe you played with them when they visited, but you didn’t really know if they had any major health issues, or how they were tracking with their education.
In this example, even if you could evidence a genuine interest in the child’s welfare and development (which doesn’t seem likely), you would then need to evidence why that child’s best interests would be met by having to be interrupted from their time with their two biological parents to spend time with you. The odds are likely against you in this one.
One the other hand, maybe you saw that child every other weekend and half the holidays. For eight years. You had been to every birthday. All the school events. Half the Christmases. You are the parent to their two half siblings. They consider your parents to be their pseudo grandparents. They are genuinely connected to you and your extended family.
The chances are, you can evidence your standing i.e. your interest in their care and development. Then it comes down to whether it is in their best interest and, although perhaps their biological parent could facilitate their time with their half siblings, maybe their extended familial connections are really important to them, and they want to have ongoing time with you and your family.
You might not be seeing them as much as you were before, but you would certainly have better and stronger grounds for some level of court ordered contact where the parents are not in agreement.
It is certainly doable, but has to be considered on a case by case basis.
First things, first – as a stepparent, you have more responsibilities than rights.
But you probably already knew that.
Regardless of whether or not you are legally married to the biological parent of your stepchildren, you are not their legal guardian unless you have a court order explicitly stating so. Or, alternately, you have legally adopted the children, in which case you would have a court order and potentially an amended birth certificate. Also, you probably wouldn’t refer to them as stepchildren.
This can be an impediment if you want or need to engage with government authorities, schools, banks, medical treatment providers and the like. With the exception of serious emergencies, in which case authorities may have permission to act for the care and protection of a child i.e. you take them to hospital with a serious injury.
You otherwise do not have an express right to act on behalf of the child and make major decisions about or for them.
Day to day responsibilities when they are in your care, however, exist.
You can be held legally responsible for the care and supervision of any child in your care under multiple Acts, including child protection and the criminal code here in Queensland.
If a child was harmed in the care of yourself and the legal parent, the child protection legislation can consider you a ‘parent’ under their broader definitions (potentially, even, under the more stringent ones) and deem you responsible for that harm. This could translate to contact restrictions not just between you and your stepchildren, but your biological children also.
Similarly, if you have lawful charge of a child, so the parent leaves your stepchildren with you while they work, then you can be liable under the Queensland criminal code for those children, and are legally bound to provide a reasonable level of supervision to them up to the age of 12.
I think the easiest comparison to make is between you and an educator. When you send children to school or day care, those educators are responsible for the care and supervision of your children during that period. If any harm comes to them, they are the adult legally responsible for your child and can face the consequences if something does happen. And just like you, they aren’t able to make major or significant decisions for the children. Lots of responsibility, limited authority.
Away from the legal position of your rights and responsibilities are your moral and ethical ones.
At the end of the day, regardless of who you are, having a child in your care should be considered a privilege. You have the good fortunate of being entrusted with a tiny human who needs your love, care and guidance to be the best person they can be.
In this context, communicating with the legal parent (or parents, if you are able) is critical, and will enable you to ‘get on the same page’ and work to look after your stepchildren and act in their best interests. It also means that, although you don’t have a legal right to make big decisions for them, you could be in a position in which your input is not only valued, but sought after.
Feed them. Clothe them. Teach them. Guide them.
Overall, be kind and keep them safe. That’s your responsibility not just as a stepparent, but as a human being.
Something that is really exciting to see, as a family lawyer, are separated couples sorting out their own sh*t.
They’ve worked out how they will each spend time with the kids.
They’ve sorted out all their property and financial stuff.
They’re still not on the best of terms. They’ve just separated. But they got their act together as two responsible and accountable adults, did the wise thing, and sorted out the issues. Themselves. Bonus points if they updated their Estate Plans too.
But. And there is always a ‘but’, isn’t there? I do like big ‘buts’ and I cannot lie.
Without a court order (or financial agreement) in place, the finality of your property and financial settlement remains at risk.
How does that work?
If you were married to your former partner, you have up to twelve months from the date of your divorce to file an application for property orders in the Family Court and Federal Court of Australia (‘FCFCoA’). You can’t divorce until you have been separated for one year, so it is about two years, in total. Theoretically, if you never actually divorce, you can still make that application at any time.
If you have left a de facto relationship, you have two years from the date of separation to make the application.
If the two of you reached an agreement, did all the things, and didn’t get court orders made, then either of you are open to make a court application any time up to the end of those two time limits.
For example: You separate all your things, sell your house and split the money. Six months later, you win the lotto. So your ex-partner applies to the court to seek a division of the property pool. This includes any property owned by either of you at the time of the application!!! Your lotto win is in jeopardy! Argh!
Better and more likely example: As above, but it could be a workers compensation payout, or an inheritance that wasn’t expected. Either way, if you haven’t formally finalised your settlement, it remains open to being part of the property pool.
Worse still, and not at all uncommon – incurring debt. I’ve seen people wrack up huge credit card debt after separation, sometimes necessary, sometimes frivolous, either way factored into the property pool until a settlement is formalised and requiring good evidence to rebut it. Whilst ‘wastage’ can be argued, it can be challenging to clearly evidence and is likely to prolong and complicate settlements if raised.
So what should you do?
I will tell every single client that I see that, regardless of how amicable things may appear, they need consent orders.
Whilst you may not need it practically, such as to avoid stamp duty on a transfer of property, it is effectively insurance to see you through that timeframe, allowing you to safely move on, immediately, with your life and financial situation.
It protects what you have.
It protects you from new debt incurred by the other person.
It protects your superannuation.
It really is like insurance.
Where to next?
How much do you spend on insurances for your family each year? In total?
And how often do you use them?
I know that, for me, I spend a few thousand dollars per year between house, car and health insurance, despite hoping that I never have to use them.
Consent orders should be looked at the same way. An investment that you hope you never need to use, it’s just sound, legal protection.
And update your Will.
Contact JP Family Law & Mediation on 0466 090 434 or book online to get started.
I am really passionate about goal setting. If I am honest, I just love a good list and adore ticking things off. There are worse vices to have, I am sure.
The only time this has failed to serve me has been in times I have been struck down by a flare of my illness. Once can’t account for this, and it truly throws a spanner in the works. But. Life goes on. And the older I get, the more I know, and the better I have adapted. The moral to the story, however, is that it has yet to deter me from pedantically scribbling down my goals and plans every day/week/month/year with the intention of being able to tick off those darn boxes!
If you hop over to my YouTube channel, you will find a video from 7 December 2021, in which I share some of my thoughts around goals, and goal setting, and how vitally important it is to me in my life. I know I am not unique in that sense, however, and I want to open up some thoughts on why you should put pen to paper and work on your goals for 2022. Whether in context of a relationship breakdown, like my clients, or just because you are human.
Now, to cut the naysayers off at the pass, I want to first address to two most common objections I get to setting goals’
Won’t it only increase my anxiety?
Let me field this one from the mind of an overly planned, overly anxious, A type personality.
It can. If you can’t possibly reach them. And that is part of the commonly used SMART approach to goal setting – are they ATTAINABLE goals?
By way of example, let me take you back to my Christmas 2014. I was recently married. I had enjoyed two overseas holidays in the latter part of the year (life was very different back then), and I had gone in for a surgery on 24 November 2014 that was meant to have me home 3-4 days later. Cool. I had six weeks off work to recover. I had a full diary with every single pre-Christmas activity scheduled, down to when I would write cards and wrap things. I was super organised. But I super failed.
I got out of hospital just over 3 weeks later. Things did not pan out as planned. I couldn’t walk more than a few metres at a time, and needed a wheelchair if anyone took me to the shops. I had no strength. I could barely hold my telephone let alone wrap gifts. I couldn’t write because… like… I don’t even know. My body was barely alive at this point and clearly writing is not a form of coordination the brain considers necessary to maintain life.
Anyone who knows me knows how much that devastated me. Whilst high doses of pain relief made for excellent online shopping and whopping credit card bills i.e. I got the Christmas shopping done, but I don’t know what I got anyone, and I bought myself bright yellow Stella McCartney for Adidas running shorts and I neither run nor wear yellow, so that sums up where my function levels were at. Anyway…
Long story short. It hurt me. I became extremely depressed because what I had set out to do and achieve, and my expectations, were no longer attainable. In my defence, I shouldn’t have been in that situation, it was an anomaly, but it gives an example.
Set attainable goals. Plan them out. Be realistic. They aren’t designed to cause anxiety and the right attitude and planning can definitely avoid that.
If a spanner is thrown in the works, accept it for what it is. Sometimes things are beyond our control.
Shouldn’t I be enjoying the present and not constantly focusing on the future?
Of course! But the two aren’t mutually exclusive. In fact, excitement for the future should mean happiness and joy in the present.
I learnt this in one of the shittier ways. Going through IVF.
I will no doubt tear up as I write this, but I think it is the best explanation.
When you go through IVF, your goal is to have a child. Plain and simple. You want to build your family via a tiny human, and for ‘normal’ people, that involves getting intimate with a person they (hopefully) love, letting a swimmer meet an egg, and finding out weeks later by peeing on a stick that their dream is coming true.
For us IVF peeps, however, it is very, very different. It’s money. It’s so many appointments. And scans. And things shoved up your privates. And blood tests. And needles. And hormones. And gels. And anything else I didn’t remember. Plus the leadup where you probably took a million vitamins for months on end, and ate a mediterranean diet and no sugar or coffee or alcohol because that’s what the book said. Oh. And the guy will jizz in a jar too. All that.
I spent my entire first round of IVF expecting bad news. I was sad. I was forelorn. I pretended to be indifferent and blocked out what was happening. I did this until our son was miraculously born from our first go at such a soul sucking medical process. I worried the ENTIRE time that he would not be there at the end. It sucked so much.
So when we decided to round out our family with baby number two, I changed my attitude.
I figured I had two options.
I could worry and be miserable all the way up to the result, and then remain miserable (so lots of misery) OR I could be hopeful and positive until I got that result, then be miserable (less misery). Fellow IVFers know what that hope is like, how big it is, it’s not a baby, it’s a family and a whole different life. It is totally shattered when you get the bad news, but the joy and happiness until that point is better than holding onto fear.
So why are goals so important then?
Goals give our life meaning and purpose. A reason to wake up and be there for tomorrow.
Your goal doesn’t have to be grand or life changing. For my Grandpa, it was usually making it to the next big sporting event he wanted to watch, or trip he was going to take. He loved sport and he loved travel. The day the doctor said he couldn’t go on his trip out west was, I am certain, the day he decided he was ready to go. He was so unwell, and this was the straw that broke him.
Separation is a time to re-evaluate your goals and expectations of your future. As is the new year.
So whether you are the former, or the latter (technically the former will also be the latter too) then get planning. Keeps your goals SMART.
Do what will make you happy, and know that they joy is in the journey, not the end result.
If I can help you through your separation, or you just want to chat, feel free to reach out on 0466 090 434 or email firstname.lastname@example.org.
First and foremost, my husband was watching a documentary on The Beatles when I woke up this morning (Get Back, on Disney+, if you’re keen). So I have The Beatles on the brain. My son also has a thing for the word ‘Beetle’ at present because there are so, so, so many beetles around our house right now. Not even pretty Christmas beetles. Just really dumb ones that seem to keep capsizing and dying upside down in my bath tub?
No organic segue here, but rather an abrupt leap across to the topic I want to touch on. Which does, in fact, relate to troubles in the past and how, if you fail to address them, can be ‘here to stay’.
Time limits under the Family Law Act 1975 (Cth)
To be all lawyerly and professional, or at least somewhat, I will first refer you to Section 44 of the Family Law Act 1975 (Cth) (‘the Act’). For anyone that is not dealing with their family law matters in Western Australia, this applies to you.
In short, there is one critical thing I really want you to know if you need to complete a property settlement – you do not have forever.
The time limits you need to know are:
If you were married, you have one year from the date of divorce to apply for a property settlement.
If you were in a de facto relationship, you have two years from the date of separation to apply for a property settlement.
Just to clarify, as you cannot apply for a divorce until you have been separated for a period of at least 12 months, the Act is somewhat consistent in allowing about two years for separating couples to finalise their property settlements.
In saying that, some people don’t rush to formalise their divorce. This can potentially leave you open to a property settlement claim in the meantime, including any wealth and assets you have built in the years post separation. So be aware of this too!
Depending on how you want to finalise your property settlement, you may not require any kind of formal agreement. If you are simply keeping what is yours, splitting what you own together, and maybe selling the house (and agreeing on how much of the profit each of you receive), there may be no benefit or need for an agreement. I recommend getting some initial advice from a lawyer first, just to make sure.
You can enter into a financial agreement under Section 90D or 90UD of the Act. This is kind of like a personal contract between the two of you, but is recognised under Australian law, and can be evidenced to state authorities to avoid certain things like stamp duty if you are transferring ownership of a property. Whilst the cost of the agreement can be higher than if you had entered in consent orders within the time limits, it is usually much lower than the stamp duty you might otherwise incur. Again, speak with a lawyer to confirm your best way forward.
The reason financial agreements can be so costly is because of the extent of work that must be completed by your lawyers and the additional time this takes.
Whilst consent orders are overseen by the courts, to ensure that they are just and equitable, financial agreements are not. Rather, they are left in the hands of each parties’ lawyer to consider and advise on whether they are just and equitable, and whether a client should be entering into the agreement. Unlike applications to the court in which a client declares that they have made full and frank disclosure of their financial situation, which doesn’t necessarily have to have been sighted by a lawyer, financial agreements require full disclosure of all assets and liabilities, and this should be evidenced with statements, valuations and any other relevant paperwork.
Theoretically, the lawyer is taking on the role that would otherwise fall to the court, in considering the facts, assessing the justice and equity of the proposed property settlement, and advising you on whether or not you should be signing the document. This will also usually require a comprehensive letter of advice from your lawyer detailing their position.
It’s a lot of work. It can take some time. And I promise you, you would rather have just entered into consent orders during the time you should have made the application.
What’s the worst case scenario?
This one came to me yesterday as an initial question from a colleague who works in a different area of law.
A friend had separated a number of years ago from the de facto partner. The former partner remained in the jointly owned house, with the children, whilst the friend continued to pay the mortgage.
The friend now wishes to sell the property, but the former partner will not agree.
The friend is out of time under the Act.
The former partner won’t enter into a financial agreement as they… just don’t agree.
As they don’t agree, there is definitely no scope to do anything informally.
So where does that leave the friend?
Although there is scope to seek leave to apply for property settlement out of time, my usual description of acceptable mitigating circumstances is ‘if you were laying on your death bed in a coma for the last two years, then you might stand a chance’. The threshold is high. Most people won’t meet it.
In this instance, it leaves the friend investigating civil and financial options to resolve the issue. Whether they would have grounds to apply in civil proceedings I can’t say. In theory they could just stop paying the mortgage and force a sale, but obviously that has significant repercussions on a person financially (credit ratings and bankruptcy for example).
I don’t envy the position the friend is in.
Sadly, I have given my advice to other friends in similar positions over the years, and seen my advice go entirely ignored. Thank goodness for conflict of interest and my inability to act when that cesspool hits the fan.
The moral to the story.
The moral to the story is blatantly obvious. Almost everyone knows that the law has timeframes. It’s in the movies.
If you know someone that might need a reminder, though, can you please remind them?
Get legal advice. Or at least be aware of your time limits and put a date in the calendar to ensure that you don’t let time get away from you before you get your property settlement actioned.
Family law property settlements have time limits, and if you don’t meet them, you could be in a world of trouble.
So, maybe love isn’t such an easy game to play.
Contact us at JP Family Law & Mediation on 0466 090 434 or visit jpflm.com for more information or to book your initial consultation online.
If you’re reading this, chances are, you aren’t sure.
For those brilliant co-parents who work together to ensure that their little people get to see all their loved ones around the Christmas season, they do two things right:
They know the importance of meaningful relationships with family, both sides, immediate and extended. Connection. It’s a critical part of being human.
They commit to act in the best interests of their children and stand by that commitment, even if it sucks a bit sometimes.
Now, if you’ve landed on this post, I am going to expect you fall into one of two categories. Either you don’t have an agreement with the other parent so they tell you if and when you will be seeing your children, or you have an agreement or orders but the other parent doesn’t actually comply with them.
Unlike property orders or financial agreements, parenting agreements/orders are entirely reliant on the parties complying with them. When they don’t comply, there isn’t an easy way to enforce the agreement, and the consequences may not be enough to deter it happening again.
So back to Christmas.
Regardless of whether or not any kind of formal agreement is in place, ultimately the outcome will require the same steps to get there.
Check in with your kids
If you get to have regular contact with your children, and they are old enough to have their own views and wishes, talk to them.
Ask them what they are doing for Christmas, how excited they are and what Santa is bringing them (okay, they probably don’t expect Santa to turn up if they are old enough to have their own mature views and wishes…but you know what I mean).
Before you go demanding and enforcing the contact you want over the holiday period, find out how they expect it to look. It doesn’t have to be exactly what happens, but it is good to know. Maybe they have step-siblings or cousins they will be seeing, and you need to know when they will be there and for how long. Perhaps you have family travelling to be there too, you’ll need to know how they feel about that.
They aren’t deciding, but it is good to know where their interests lie.
Reach out to the other parent
If there are orders in place, it might be a case of confirming the changeover details. This is a sound reason to get in contact with them and, all going well, they will simply confirm what you expect to happen.
In the event you don’t have formal arrangements, you might want to let them know you are excited about the season and would love to know when you might be seeing the kids. Ideally, they will give you the answer you want to hear.
If you got the answer you wanted, lucky you. You can stop reading now.
Once again, however, if you are reading this post, it’s likely you aren’t going to get either of those responses.
Before you cut off this communication and give up – see how far you can bridge the gap. Let the other parent know what you are hoping for. What you think the kids would want. And how you think this might work with their circumstances. I know it shouldn’t be about negotiating with the other parent and ‘fitting in’ with their life and what they want. But let’s focus on the results. This is part of the journey there.
It’s time to mediate
Ask the other parent if they will engage in mediation with you.
Private mediation comes at a cost, but it’s your best opportunity to get in before Christmas.
Whether or not the other parent has agreed, you may want to engage a private family dispute resolution practitioner to invite the other parent formally, and to issue a Section 60I Certificate should you wish/need to go to court.
In the best case, they will agree to mediate and you can work together toward a suitable agreement for the Christmas period and beyond. To avoid court and avoid legal processes.
If they don’t engage, or you don’t reach agreement, then…
Sometimes, it may take as little as a letter from your lawyer to remind the other parent of their obligations to comply with parenting orders and agreements. Whilst their own lawyer should have given them this same advice, a timely reminder can be sufficient. It shouldn’t be necessary, but sometimes it will help.
Otherwise, we will look at how best to deal with this, as well as general compliance and arrangements moving forward.
It can be a long road, but you are doing it for the most important things in your life. And Christmas.
Contact JP Family Law & Mediation on 0466 090 434 or email email@example.com to talk now.
When my stepdaughter turned 12, her maternal family told my husband, in no uncertain terms, that they had told his daughter that ‘when she turned 12’ she could decide whether or not to continue spending time with her dad. He was then told she no longer wished to come and spend regular time with our family, and he could visit her at her mum’s house. Or something like that.
Anyway, our personal circumstances aside, I can tell you now – there is no legal or statutory age at which a child can decide where they want to live. Well. I mean. Technically they can. When they turn 18. Your adult child can choose where they live.
Practically, it’s often said that teenagers will ‘choose with their feet’. Regardless of what parenting arrangements are in place, by their teenage years, your kids will usually be fairly emphatic in their preferences, and are usually resourceful enough to ensure they are spending their time where they want to spend it. But that’s not the law.
The Family Law Act 1975 (Cth) (the Act) does not stipulate an age at which a child’s views and wishes will determine any decision around parenting orders. Nor does case law. At the end of the day, it still comes back to section 60CC of the Act and what arrangements are in the best interests of the child.
So when would their views and wishes count?
And how can they be articulated to the court?
The views and wishes of a child can be obtained via a Family Report in court proceedings, or potentially through a child consultant in mediation or out of court negotiations. Basically, an experienced professional who works with children and has an understanding of emotional and cognitive development and children’s support and parenting needs, will assess the children and provide a report to the parents and/or the court. These assessments can include interviews with parents, interviews with children, observations of interaction between parents and children (and other family members) and gathering of information from other sources such as doctors and schools.
This allows the knowledgeable professional to form an informed and educated view on not just the views and wishes of the children, but how those views and wishes have been formed. They will consider things like:
How much of the situation does the child understand?
How impressionable are they?
To what extent are their views based on the views of a parent?
Does the child align their views to please a parent or parents?
How mature is the child? Emotionally? Cognitively?
How dependent is this child on their parent or parents, both to meet their daily care and protection needs, as well as their ongoing emotional development?
This can get pretty complicated. So I like to think of it this way:
“Does the child know what their best interests are?”
If you are like me, and like a checklist – use section 60CC. How much of that section would the child actually understand and be able to answer?
As every child is different, you can’t assume that any given age provides for this clarity of understanding. I’ve met 8 year olds that could articulate this clearly, and 15 year olds that are so aligned with a primary parent they can’t express a single independent thought.
Even if the court is satisfied that a child’s views and wishes should be considered, they then apply judicial discretion (so, their own view) on the weight that they should give to those views and wishes. This is when age may start to play a role.
The court knows that whilst the 8 year old is at the hands of their parents as to where they live (as parents can still control the movements of a younger child) a similarly expressed 15 year old is going to go where they want to, regardless of the orders made (in most cases). So the court might give more weight (importance) to the views of the older child, and less to the younger. They will consider the views and wishes and determine how important they are at that time to any orders that the court must make.
Clear as mud?
Probably. It’s a bit like that. The important takeaway is to know that there are other avenues available to assist you to know how your child really feels, what they really want, and what would likely be in their best interests i.e. engaging a child consultant or other children’s professional.
I am genuinely passionate about helping families get on the same page and work to make their children’s lives the best they possibly can. Separation is just another family dynamic and doesn’t mean your child can’t get everything they want, need and deserve from their childhood.
Get in touch if you think I can help you and your family. Separate better.
I love mediation. Really love it. Not just because I am massively conflict averse, but because, unlike it’s angry litigious cousin ‘Court Proceedings’ (look, I know he can be useful sometimes, but he is generally a jerk), mediation gets to the bottom of things.
As lawyers, we really enjoy facts. Good old objective, evidenced, ‘black and white’ facts. Facts that can’t be disputed and can help us to determine who is wrong or right, what has happened in the past, and what should rightly happen in the future.
But parenting issues are different, because, unlike many other areas of law, including property settlement, parenting matters are determined on the best interests of the children, and that isn’t something that can be decided on facts.
Whilst facts can definitely help to build a picture of what is going on around the family and the kids, the best interests of any human being are not static, and need to be considered in light of the ‘facts’ as well as the thoughts, feelings and future goals and expectations of that person.
Children included. And, luckily for us family lawyers and any poor parent dealing with managing kids’ arrangements after separation, no two people are alike, and those other factors are so highly variable that there is no one answer, or ‘one size fits all’ approach that can be taken and applied to resolving issues. Especially when parents can’t agree on the big decisions.
So circling back to the weird tangent I started on. I love mediation. And that is because it lets people talk. Openly, honestly, and from a place of ‘why’, rather than reciting off an affidavit or similar other list of gripes.
Even for parents who are still in a relationship together, agreeing on big decisions like schooling, religion and medical treatment, can be tricky. The difference is, in a positive co-parenting relationship, whether the parents are in a relationship or not, communication is high and the ‘why’ is often readily shared and more easily considered and dealt with.
“I don’t want our kids going to a Christian college.”
“But it’s the best school in our area.”
“Well I don’t agree. They aren’t going there.”
“You never agree, you’re just doing this to spite me…” etc.
You know the story. You know the conversation! You have probably had it. We all have.
In situations where the communication is good, and open, the question of ‘why’ would have been asked straight away. And maybe it would have been met with a roadblock, and maybe it could have been asked again.
“Because I was raised in a Christian household and was taught beliefs that I don’t want our children to have because they affected me detrimentally.”
And then the real conversation is opened up. The ‘why’ behind the issue.
When we fail to deal with the ‘why’ in any circumstance, at home, at work, anywhere, any outcome or resolution isn’t necessarily going to work in the long term.
Another common BIG decision that causes conflict will be around location, or, indeed, relocation. There is a substantial difference between someone wanting to move somewhere ‘because they feel like it’ versus ‘because I can’t afford to pay rent where we are anymore and this is the closest option I can afford’.
There is also a big difference between ‘so I can be closer to my parents’ versus ‘because I need to be closer to mum as she is really unwell and I am providing care for her, and the kids are wanting to spend as much time with her while they still can’. Factually, they are the same. It is a proposed move. The ‘why’, however, is what makes the difference as to the interests of the children, as well as the position of the other parent.
The question is, however, what about when you don’t agree?
What are your options?
The Family Law Act 1975 (Cth) provides for a presumption of equal shared parental responsibility. This means that, without reason otherwise, any orders the court make around parenting will generally include shared parental responsibility which includes making big decisions. For those of you without parenting orders, the same essentially applies.
In essence, regardless of whether your issues are big or small, you will inevitably revert back to the same options as in any other parenting matter. Mediation, negotiation or litigation.
The courts expect that you will mediate first. I advocate for this, not just because it is expected that you ‘try and fix things yourself first’, but because I think, with the right mediator, you can get really good outcomes. In many cases, with the right mediator, you can resolve some if not all of the concerns.
But I practice holistically. And that means, I will do anything, anything, to keep you out of the courts. That is why I want to offer some other ideas that might work for you and your family to overcome these types of disputes:
Family Counselling: this is the therapeutic way of drawing out the ‘why’ in a setting that is supported by a trained and competent professional. They will know how to open you out, and know how to keep you safe. Unlike normal mediation, this isn’t about making an agreement, but looking at the underlying issues and working towards overcoming these first. If there is a lot of trauma from your relationship, or ongoing high conflict, this is well worth the investment.
Divorce/Separation Coaching: you know how your PE teacher used to put a rocket up your arse if you were at the back of the pack in a warm up run? Or your netball coach made you run the drill extra times because you weren’t putting in the effort with the team? Did your soccer captain scream at you until you cried because you realised that maybe, just maybe, you weren’t actually trying hard enough in that match? Well, that soccer captain grew up and got a law degree (or something similar) and now they want to get the very best out of you in this setting. Sound weird? It’s not. It’s freaking awesome. You and the other parent will be getting direction and advice together and separately, and guided in a proactive and practical way to ‘get shit done’.
Parenting Coordination: this is the premium service for parenting matters, taking holistic to the next level. It is about preparing you, guiding you, getting you through mediation, and then case managing your arrangements moving forward to ensure they actually work, and nipping issues in the bud nice and early.
What I ask, is that you try everything you can before heading down the legal path. Neither you, or your children, want a court, who doesn’t know you from a bar of soap, making big decisions on your behalf just because you couldn’t work through conflict like the brilliant kick arse parents you know you can be. Or already are, I hope.
Still not sure where to go? Get in touch and see if I can be of any help.