Unfortunately, in our society now, one in three marriages (and de-facto relationships) ends in separation. The hardest legal issue to deal with is – the children. 

The Family Law Act provides that the children’s best interests are of paramount importance. It is all about them, not about the parents nor the grandparents.

There is a presumption of shared care in the Family Law Act, which means that, in an ideal world, the children can spend equal time with both of their parents. This may often happen on a week-about routine, or any combination, as agreed. The court will only sanction such an arrangement if both parents see eye-to-eye, and there are no issues between them relating to how the care of the children is to be implemented and managed. If the parties are agreeable, and content with those arrangements, then there is no need for judicial intervention, other than perhaps to formalise that agreement.

Issues arise when the parents can not decide, on an amical basis, how the care of the children is to be arranged.

Often, factors out of the control of parents can determine these arrangements. For example, if one parent is working full time, then it is very difficult for that parent to look after the children on a full-time basis.

The normal arrangement, (if there is such a thing), is that the children reside with one parent and spend time with the other. For example, the children may live with the mother, and spend time with their father every second weekend, half school holidays, with specific arrangements relating to the long Christmas holiday break, long weekends, the children’s birthdays and other special events.

It is always better, for all parties involved, for an agreement to be reached in relation to how the children will spend their time between their parents.

One would think that this would be an easy task, given a 14-day cycle, in which the parents will share the time. However, unfortunately and sadly, there are a number of other factors that seem to come into play to make such a decision difficult. These factors include:

Emotional trauma of the separation.

The wish for the children to keep both parents happy.

The practicality of the arrangements with the children.

Hidden agendas in relation to child support and family care payments.

The ability, both emotionally and financially, of either parent to look after the children.

Geographical obstacles, especially if the parents live a great distance apart.

The wishes of the children, or the manipulation of the children’s attitudes.

Emotional and financial security, or lack thereof, of either of the parents or both.

Family and/or domestic violence involving the parties and/or the children.

The above list covers just a few aspects which may come into play in making the decision process complicated and, often, very emotional.

The Family Court process is geared for the parties to try to negotiate a settlement between them. There are Government and private organisations that will facilitate a mediation process between the parties, in the hope that the parties will be able to reach an agreement. This is always the best and most cost-effective solution. However, it goes without saying that, if the parties are unable to communicate, or the fine line between love and hate is crossed, it is very difficult for the parties to come to any agreement, let alone an agreement as to what is in the best interests of the children.

Before any court proceedings can be commenced, the parties must partake in a formal mediation process and, if unsuccessful, they are then issued with a Certificate pursuant to Section 60I of the Family Law Act. It is only then that the parties can commence legal proceedings.

The benefit of commencing legal proceeding is that it provides a formal structure and pathway for the parties. The Family Court, in its process, encourages the parties to mediate, and try to resolve the issues in relation to the children during that legal process. The downside of the legal process is the time, the financial burden and emotional toll that it can impose upon the parties. Current delays in the Family Court can be up to two years, or even more. The costs associated with a one- to two-day court hearing can be in the vicinity of $40,000-$50,000. This money, one would think, would be better spent in the children’s interests, rather than arguing about what time each parent spends with the children. One should always remember that the whole process is about what’s in the best interests of the children.

Unfortunately, as the court system proceeds, often the needs of the children and the parents, and their personal circumstances, can change. Parties may become unemployed, may move locations, re-marry, re -partner, have other children to other partners and/or suffer from ill health. These factors only just make the process more complicated and difficult for the parties to come to grips with.

It is my experience, however, that if the parties can agree, then over time an alternative routine will be established that the parties will get used to. The old saying is true, that time can heal all wounds.

There is no easy solution to resolving these issues, especially from a subjective level. It is my experience that parties have their wish lists, and  lists that they can live with and, more often than not, the arrangements parents can live with will win out.

It should always be remembered that it is all about the children, not the parents. The casualties often are the children who, through no fault of their own, are caught up in a process of family dysfunctionality.

James Paton.

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