ARE DADS TREATED POORLY BY THE COURTS?
As a family lawyer, I regularly see dads who worry about their chances of being treated fairly in the Federal Circuit and Family Court. Whether right or wrong, the courts carry the stigma of being biased against dads when it comes to parenting orders and in particularly equal shared parental responsibility. I believe there was a some truth to this in the past.
Divorce and separation is always an emotionally charged time with blame and mistrust between parents often clouding judgement over how the children will be cared for. I can’t over emphasise enough how important it is to sort these things out over the negotiating table rather than force the courts to make decisions about your children.
Many dads are clear headed and understand the tactical nature of negotiating parenting arrangements and will give as much ground as is needed in order to get a good transition and stability into the children’s lives. But on the other hand, some dads come to me at their wits end suffering with depression, anxiety and high levels of stress because they can’t handle the games and accusations by the other party. They believe that their character has been assassinated and they will never be able to spend any time with or see their children.
Trying to keep the focus on the children and not on your pride can be difficult. I know when someone says something awful about me it hurts and I must contain both my testosterone and the natural feeling most of us have to fight back. One way dads can avoid experiencing the potential hurt of page after page of allegation and accusation in a ex-partner’s affidavit to the court is to ensure they make the most of a mediation and pre-court negotiation.
They say that most people aren’t good negotiators because they don’t want to give up any ground or ever admit any wrong. However if you use an organisation like Relationships Australia to help map out a parenting plan then the sole focus of the mediation will be on the best interests of the children, and not trading insults. I’ve heard some men say “tried that and it didn’t work”. May I say that when it comes to your kids you need to read about the art of negotiating and keep going back to the table to try and get some semblance of a parenting plan so it can be turned into a consent order and sealed by the court.
THE ALTERNATIVE IF YOU DON’T?
More stress, the unfamiliar and formal environment of the court, potential legal bills and the strong possibility of a Judge making the decisions about how parenting will occur. This is particularly the case with hot headed or ‘know it all’ self representing dads who spend their time in court arguing with judges, who believe me, have much more important things to work on. But the worst thing, as any dad in this situation will tell you, is the waiting and the lack of contact with the children… with a court process that is methodical and slow.
WHEN IT ENDS UP IN COURT, THIS IS WHAT HAPPENS
Back in 2010, Judge Murphy made a very profound statement in the matter of Lansa v Clovelly: “The rights of children, and assertions as to their best interests are, in many highly conflicted parenting cases ending in trials, refracted through a prism of each parent’s creation which contains their interpretation of the children’s best interests….. Where there is conflict of a chronic and debilitating kind…, the issue is further considerably clouded by assertions and counter-assertions of past and present “wrongs” said to support ultimate assertions about the best interests of the children and said to “justify” the exercise of rights by a parent.”
Sound familiar? One party says they shouldn’t have the children because of ‘x’ and the other party counters with allegations why the other shouldn’t have the children. One parent demands the child be schooled one way the other parent another way. It can go and on and end up dealing with even the slightest thing in a child’s life. Pity the poor kids!
Much of the time this is acted out in the court by ‘self representing’ mums and dads and again witnessed in their often long winded and highly subjective affidavits to the court. Now these affidavits are meant to be your evidence in chief but judges aren’t going to pay much attention to this “evidence” if it’s biased and not fact based.
A common misconception is that mums are regularly introducing sexual abuse allegations against dads to solely better their chances of sole parental rights. Look I have seen this this used maybe twice and it was unfortunate. It is always important for the court to take an allegation of this nature very seriously, but at the same time to ensure the evidence is examined and tested. If you’re a dad in this situation, you shouldn’t be going it alone, you need to consider getting legal assistance.
On the point of ‘phoney’ sex abuse allegations, the experts seem divided. In an article in The Monthly, written by Jess Hill, child psychiatrist and single expert for the Family Court, Chris Rikard-Bell, noted that “about 90%” of child sexual-abuse allegations he assesses are false. Whilst on the other hand, Forensic psychiatrist Carolyn Quadrio, a medico-legal expert on domestic violence and child abuse, says studies commonly show false abuse allegations comprise only 10% of the total. The advice I often give when this stuff comes up is to focus on your game plan and don’t get sucked in by the another parties games, particularly when you know the accusations are not true. Ensure you counter with evidence in your reply affidavit that negates what the other party is saying but don’t spend time emoting. Remember, once in court, it isn’t going to be a walk in the park – you have to be prepared when a curved ball is thrown.
WHEN IN COURT THE FAMILY LAW ACT HINTS AT WHAT WILL HAPPEN
So be well read and understand the sections of the Act that are relevant to you. Not too up on reading, let alone reading legislation? Well pop in to a local Community Legal Centre and get some advice and comprehension on the law with a free family lawyer. In a nutshell, let’s have a look at some of the basics in The Family Law Act and what outcomes dads should expect if things go to plan.
Deciding children’s best interests
Here, the court’s most important considerations are: Protecting children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt AND The benefit of children having a meaningful relationship with both parents. If these two conflict, then the need to protect the child is given GREATER weight by the court.
The court must also consider a wide range of things including the views of the kids; how much time you’ve spend over time with the kids; whether you’ve financially supported them; any affect moving the kids around would have; any views the kids have (more weight is placed on this with older ones); the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare; how much each parent and any other person (including grandparents) can provide for the children’s physical, emotional and intellectual needs; each parent’s attitude to the responsibilities of being a parent and towards their children in general; and of course any family violence involving the children or a member of their family including family violence orders.
Equal shared parental responsibility
Parents have duties and responsibilities in relation to their children. Equal shared parental responsibility means both parents sharing major long-term decision making about the children. It is NOT the same as equal parenting time or shared care.
Equal shared parental responsibility includes making decisions about children’s:
♦ medical matters
♦ religious matters
♦ cultural matters
♦ living arrangements.
If the court finds both parents share parental responsibility, then the parents must try to come to agreement about major long-term decisions affecting the children. If you start being difficult here this can impact on parenting time. Which reminds me of the dad who was like a dog with a bone over his daughter NOT being immunised.
If equal shared parental responsibility is presumed, the court must consider whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent. For example if as a dad your working long hours and wouldn’t have the time to fit into the kid’s school routines that may play against you particularly if your extended family can’t pitch in. But again it’s more about YOUR availability to be with the kids than your mothers.
Where this can be a problem the court may feel that substantial and significant time is more appropriate. This can include the kids spending weekdays, weekends and holidays with you and at the same time still having meaningful involvement with the children’s daily routine where it is manageable. Things such as a spending time with your kids on days such as birthdays or at school concerts can come into play with court orders. However with parenting time the court will look at whether an arrangement is practical. For example,how equal or substantial and significant time will affect the kids and how far apart you and your ex live. The court would also take into consideration both mum and dad’s ability to share care and communicate with one another and to resolve difficulties in relation to any proposed arrangements. And believe me things do come up and you need to be flexible and rational.
The most important thing is making sure any arrangements work in the best interests of the kids in an ongoing way. Don’t ever become deluded that now you are before the court, this is about your entitlement. It ain’t …it’s all about the kids.
In 98% of cases, kids deserve to have their dads supporting and loving them. As a lawyer I just hate to see mums and dads get into messy situations with blame and accusation games. I know many of you hate the family courts and can’t stand family lawyers like me, I get it and I understand but the reason you’re before the court is because both of you haven’t managed to work things out.
Remember it’s not about you it’s about those wonderful kids so mediate and re-mediate and swallow some pride and give some ground in those pre court negotiations with your ex. Because even if it doesn’t work out in that stage, the court will see and acknowledge how much effort you’ve made to come it a civil agreement in a difficult time when considering their orders.