Children’s matters

At Scales & Partners, we understand that, after separation, parenting arrangements can present challenges both for parents and children. Most people work out a reasonable arrangement by agreement but we have all heard and, in our case, have experienced horror stories about drawn out litigation over such matters – sometimes with one or both of the separating parents using children as “pawns” in separation. Whilst we know what to do if litigation comes about, our starting point is a commitment to facilitate an agreement, by providing sensible advice to our clients to help them achieve a child focused outcome in a cost effective manner.

Settling things before court

Sometimes parties can sort out arrangements which work without the need for assistance.

In most cases where that doesn’t happen, the first step is going to Family Dispute Resolution. The role of the Dispute Resolution practitioner r is not to take sides in the matter but try to work with the separating parents to reach an arrangement in the best interests of the children. It can be helpful to discuss your concerns confidentially with a Family Lawyer before starting Family Dispute Resolution.

A Parenting Plan can be reached between the parties at Family Dispute Resolution. This is not a binding agreement in the same way Court Orders are binding but is a useful confirmation of what the terms of the agreement are.

Further information about Family Dispute Resolution can be found on the Family Relationship’s Website.

What is important in a parenting matter?

The guiding principles are set out in Part VII of the Family Law Act. However, essentially, the Court will always consider what is in the best interests of a child. When the matter gets to Court, Judges are not particularly concerned with the views or feelings of a parent; they are concerned about what is best for the children. This does not necessarily mean the Court will disregard important matters such as domestic violence, abuse or drug use. However, the behaviour of parents, including the behaviour they display towards one another, is only one of the factors in determining what time the children will spend with each parent.

What is the age when my children can decide their care arrangements for themselves?

This is one of the most common questions we are asked. The legal answer is: 18! The practical answer is: some years before that. A court is highly unlikely to force a 17 year old to spend time with one parent if they object to same and probably not a 16 year old.

The views of younger child will be only one of the factors to be taken into account. Even where a child might express a very strong reluctance to see one parent, a court might still determine that it is the child’s best interests to do so.

Their views will be given more or less weight depending upon their level of maturity and the reasoning behind their particular view. For example, it a court considers that the expressed wishes of a child have come about as a result of manipulation on the part of one of the parents, very little weight will be given to those views.

I am concerned about the safety of my children when they are with my ex-partner. What can I do?

Unfortunately, it is i common for separated parents to have concerns about children’s safety whilst in the care of their ex-partner.

Whilst courts and government agencies are getting better equipped to address concerns about physical, emotional, or psychological abuse it is a very hard area in which to get things right – particularly if they perceive the issue to be more about the relationship between the adults. Usually you have to explain why, if the other person was so unfit to care for the children, you stayed with them for so long?

Whilst courts do have the power to order various measures to protect children when in the care of a parent (such as orders ranging from preventing parents from drinking alcohol, using drugs or smoking cigarettes whilst the children are in their care ranging through to supervision of the parent’s time with the children) they are aware that they cannot micro-manage all parts of a child’s life and that it can be counter- productive to do so. Moreover, the enforcement of such restrictions can be problematical.

My ex-partner isn’t so bad but I don’t like their new partner/their friends. What can I do?

As separating families become more common so too are “blended” families. When new partner comes onto the scene, it is not unusual for the other parent to have concerns about someone who their children will be spending a lot of time with.

The Court can make orders preventing your ex-partner from allowing a certain person to come into contact with your children. However, these tend to be the exception.

The reality is that, apart from extreme cases (e.g. serious physical abuse), there is very little you can control about what happens in the other parent’s household.

I am a grandparent and have difficulty seeing my grandchildren. What are my rights?

Difficulties in maintaining contact between grandparents and grandchild can arise due to many reasons. Your relationship with your grandchildren might be impacted due to the separation of their parents, but may also be due to difficulties in the relationship between you and their parents. Just because their parents don’t get along with you, does not mean your grandchildren should be denied their right to a relationship with you.

The Family Law Act not only gives consideration to the right of children to spend time with their separating parents, but also the right of children to have relationships with people who are significant to them. This includes grandparents. Grandparents have the right to ask the Court to make orders that they be allowed to spend time with their grandchildren.

As with separated parents, grandparents must first attempt Family Dispute Resolution before going to Court, and it can be helpful to discuss your concerns confidentially with a Family Lawyer before starting Family Dispute Resolution.

I want to leave where I am living and start a new life with the children/my ex-partner has taken the children and run away. What can I do?

Relocation disputes involve two important, but competing considerations – this being the right of a person to freely travel and live where they choose as against the rights of a child to live near, and spend time with and have an ongoing relationship with the other parent and/or other significant persons in their life.

A relocation matter might involve a proposal to move vast distances (i.e. moving between different cities or different States, or even moving overseas) or may involve just moving across the other side of a city.

There can be good reasons for such a move – e.g. for family support (including a new partner) or for employment/ business reasons. The reasoning behind the move is, however, not the only matter for a Court to consider when deciding a relocation matter; the Court looks at both the current arrangements for the children and the proposed arrangements and will then make a decision based on the best interests of the child.

If you wish to relocate to another city we suggest consulting a lawyer before making that decision. We can help you properly approach the matter and, perhaps, come up with a proposal to present to your ex-partner.

You should also keep in mind that, if you move without your ex’s agreement, you could potentially be ordered to come back – including whilst the Court is considering the matter. Whilst you might ultimately be allowed to leave once the Court has had the opportunity to consider all matters, having to move back to comply with an interim Court Order will present a lot of practical difficulties and make the move far more expensive and difficult than it otherwise should be.

If your ex-partner has taken your children and moved away without consulting you and/or without your permission, you should contact us to discuss the matter in more detail urgently. If you delay in responding to the move, that may well prejudice your chances of success.

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