At times of separation and divorce I often see very reasonable people morph into very difficult people. The task of putting together a fair and workable parenting plan is often clouded in by the animosity and resentment of folk who are still ‘red hot’ angry and not  thinking clearly because of the split.

Don’t get me wrong, most of these people truly want the best future for their children, but not necessarily for each other. Time is a great healer when it comes to this but parenting arrangements just can’t wait. They need to be done and done well so that kids have stability and routine in their lives. How do you get a great one worked out post the split when emotions are running hot?

Let me tell you something, you need to firstly calm down and not bother with any point scoring or game playing coming the ex. Traps are often set by the other party to stir the pot, paint you as a bad parent and create barriers. Ignore them and don’t play along. Keep focused on one thing only- a plan that is in the best interests of your child(ren). The more you play another parties’ games, the more you will feel the need to fight rather than plan. Wear them down with your cool clearheadedness.

Why? Because a well thought through and workable parenting plan is worth it’s weight in Kalgoorlie gold. Think of it as an easy to follow roadmap that will get you off of those confusing unmarked back roads of parenting after divorce or separation. A plan that tells you what your roles are is a necessity for success for you AND a real calmer for the kids. 

So what exactly is a parenting plan?

A parenting plan is a voluntary agreement that covers the day to day responsibilities of each parent, the practical considerations of your kids’ daily life, as well as how the two of you will agree and consult on important long-term issues about the kids. The plan can be changed at any time as long as both parents agree.

Who can make them?

To be a parenting plan under the Family Law Act (the law relating to this), your plan must be made and signed by both parents. However, other persons, such as grandparents or step-parents, can be included in a parenting plan.
And on that point I want to tell how wonderful and supportive 99% of grandparents are to both parties and how much kids just adore them.

Make sure that you type up the agreement, date it and please ensure that you both sign it. It does not need to be witnessed. This is an agreement of trust between the two of you and is not legally enforceable. It’s like saying we don’t want to drag this through the courts because we have this plan which we both think is in the best interests of our kids.

Importantly, it must be made free from any threat, duress or coercion.

Not sure about an informal agreement?

If you’re not at a very high trust level with an informal agreements you can make an application to the court to have your plan sealed by the court. These are called ‘Parenting Orders by Consent’. It’s a fairly simple process and you won’t have to spend much (if any) time in court to get this finalised.

Once made, these orders are legally binding – they have the same effect as any other parenting order made by a court.

If parents can’t work out parenting arrangements it’s off to court you go and much of power you both have ends up under the scrutiny of the Judge’s discretion based on the evidence presented. Simply, it’s an awful process and everyone gets very stressed by courts. If your self representing it’s a very hard time indeed.

The court must consider the most recent parenting arrangement or parenting plan when making parenting orders in relation to the kids and the extent to which both parents have complied with their obligations in relation to the child, which may include the terms of a failed parenting plan.

Before I describe the benefits of having an effective parenting plan, let me describe what happens when you don’t have one, or have only a bare bones excuse for a plan. Your kids pay the price.

• They end up missing out on time with one parent or the other
• They miss out on time with their friends or participating in activities
• They may not receive timely or adequate medical care
• They may not receive important psychological care
• They lose touch with grandparents and other extended family
• They feel frustrated, sad, disappointed, and angry much of the time because their lives aren’t working very well
• They resent their parents for getting divorced in the first place or for putting them in the middle of parental disagreements or power struggles

There are a number of reasons that parents end up with only a minimal or ineffective parenting plan. Chief among them is that parents are trying to think through how they are going to parent their children after divorce or separation during one of the most stressful, emotion-filled times of their lives. It is an overwhelming, daunting task for even the best of you guys and gals.

If that sounds like either of you, call in a mediator like Relationships Australia to help the two of you work things out. Lawyers can be helpful but they are very expensive so I encourage you to save money and start with a mediator.

The drafting of a parenting plan is important and can also be done relatively inexpensively. Here at The Legal Eagle, our legal drafters (who are qualified lawyers) have been helping write parenting plans and all sorts of court documents for self representing parents for about a third of the price lawyers charge. Drop us a line if you’re struggling with your family law matter, we’d be more than happy to help.

What can be included in a parenting plan?

Your plan will be unique to your circumstances. It should be practical, simple and as concrete as possible. A parenting plan can deal with any aspect of the care, welfare aspect of the care, welfare and development of a child.

The kinds of things that may be covered in a plan include:

♦ How the parents will share parental responsibility and consult about decisions (like which school the child will attend)
♥ Who the child will live with
♦ What time the child will spend with each parent
♥ How and where the changeovers are to occur
♦ What time the child will spend with other people, such as grandparents
♥ How the child will communicate with each parent or other people (eg by phone, email or letters)
♦ What arrangements need to be made for special days, such as birthdays and holidays
♥ What process can be used to change the plan or resolve any disagreements about the plan
♦ Any other issue about parental responsibility or the care, welfare and development of the child.
♥ What financial responsibilities will each parent have (outside of Child Support) for all the odds and ends expenses that pop up (School trips, uniforms, sports activities, special outings, miscellaneous health appointments etc)
♦ A timetable to evaluate and change the parenting plan if needed

Please note that any changes to the care arrangements for your children can affect child support, income support and family assistance payments. If you have a parenting plan and Child Support (CS) has a copy of it, CS can base your care levels in your child support assessment on the care levels outlined in the plan.

If your parenting plan specifies amounts for child support payments, CS cannot enforce it unless it is also a valid child support agreement and you or the other parent ask CS to accept it. However, parents who agree to less child support than the amount assessed under the child support formula can do so, as long as they get legal advice. Don’t forget he amount of Family Tax Benefit Part A you receive is based on CS’s formula assessment, not the child support agreement.

What Does ‘The Best Interests Of The Child’ Mean?

When you make decisions about your child their needs must come first. So naturally the most important thing for you to consider is what is best for your child. Children have the right to know both their parents and the right to be protected from harm.

However, the safety of your child(ren) must come first when considering your child’s best interest. These are important things to think about. If there is a history of one parent being aggressive or involved in any form of emotional, psychological or physical abuse, it will be difficult to get anything more than supervised time in a parenting plan. However cooperation and good behaviour during supervised visits  can open the way for unsupervised time.  If the kids are in their adolescent years you might want to think about any views they’re expressing about where they live and go to school. Relationships and time with extended family significant to them (such as their grandparents) also shows a real concern for your kids’ best interests.

Equal shared parental responsibility?

Except where there are issues of violence or abuse, the law presumes that it is in the best interest of a child for the parents to have equal shared parental responsibility. This does not mean that the child should spend equal time with each parent. Rather, equal shared parental responsibility means that both parents have an equal role in making decisions about major long-term issues that affect their children, such as schooling and health care. If you agree to share parental responsibility, you will need to consult with each other and make an effort to come to joint decisions about long-term issues. However, when the child is spending time with you, you will not usually need to consult on decisions about things like what the child eats or wears because these are not usually major long-term issues.

Benefits of a Well-Designed Parenting Plan

Earlier I said that having a well-designed plan is worth it’s weight in gold to parents. I mean that. When the day-to-day decisions of your life as a parent are planned for and running like clockwork, children and adults alike can breathe easy. When you know how you are going to handle special events, holidays, vacations, medical care etc. your brain and your blood pressure are going to thank you. Of course there will always be some event that hasn’t been planned for – just to keep you on your toes! After all, we are talking about human families here. But generally, your life and the lives of your children will go much more smoothly.

Here are just a few of the many benefits of having a good parenting plan:

• Peace of mind for adults and children
• Less stress
• You put a safety net under your children so they don’t fall through the cracks
• You are able to focus on parenting your children when they are with you rather than fighting with the other parent
• You and your children have a schedule that provides emotional safety and routine
• You are able to make plans for the times when you have your children with you and when they are with the other parent
• You are able to avoid going back to court to solve parenting disputes

What Goes Into an Effective Plan?

Remember this about your parenting plan: one size does not fit all. The plan you and your child’s other parent develop will be as unique as each of the individuals in your divorced family. The ideal plan will take into consideration all of your family members’ needs – especially your children’s needs.
Try to see this experience through your children’s eyes. It will likely be quite different from yours.

Essential Elements

• A clear, well defined schedule including provisions for holidays, vacations, school vacations etc.
  
• Outline of who is responsible for making decisions and how those decisions are made if both parents are responsible.
  
• A plan for who provides transportation to the other parent’s home and to extracurricular events etc.
• A plan for financial responsibilities for each parent.
  
• A plan for specific parenting responsibilities (e.g. who stays home when a child is sick; who goes on school field trips and other events; who helps with homework; who takes kids to medical and dental appointments etc.)
  
• A forum for managing disagreements when they arise.
  
• A system for sharing information.
  
• A timetable to evaluate and change the parenting plan if needed.

Dr. Robert Emery, an eminent American psychologist and expert in family relationships and children’s mental health believes that separating parents fall into three types. Sometimes they stay fixed in these types and sometimes they move forward because they know it will benefit the kids.
The types include:
Angry: Couples in angry divorces/separations feel rage and pain vividly, have trouble letting go of the relationship, and may be so enmeshed in conflict that emotionally they are as involved in each other’s lives as they were when together.

Distant: Where parents keep their marital conflict pretty well hidden from their children. Many parents with a distant divorce are extremely hurt and angry or frustrated and resentful, and the distance helps keep their rumbling volcanoes from erupting. Distant divorcers are child centered and competent parents. In fact it may be their commitment to their children that keeps them from going to war.

Cooperative: These parents are rare, at least in the beginning. Cooperative divorces/separations generally involve parents who understand children and empathise with their feelings, and who accept their responsibility as parents. They have done a good job of protecting children from marital conflict.

Now let’s apply these considerations to some sample parenting plans.

Sample Parenting Plan for Early School Age Children from 6-9 Years

Angry:

• Every Friday from after school until 5:00 P.M. Saturday.
  
• Every other weekend from 5:00 P.M. Friday until 4:00 P.M. Sunday. Alternate Mondays from 5:00 P.M. until 7:30 P.M. on the Monday following the weekend spent with the residential parent.

Distant:

• Every Friday from after school until 5:00 P.M. Saturday. Every Monday evening from 4:30 P.M. until 7:30 P.M.
  
• Every other weekend from 5:00 P.M. Thursday until 4:00 P.M. Sunday. Alternate Thursday evenings from 5:00 P.M. until 7:30 P.M.

Cooperative:

• Every Thursday from 5:00 P.M. until 5:00 P.M. on Saturday.
  
• Every Wednesday from 3:00 P.M. until 5:00 P.M. on Saturday with one parent; every Saturday at 5:00P.M. until 3:00 P.M. on Wednesday with the other parent.
  
• Every Monday and Tuesday with one parent; every Wednesday and Thursday with the other parent. Alternate weekends from Friday through Sunday with each parent.

Clearly, the cooperative has more flow, flexibility and trust and although it may not be a starting point for you it’s something both parents should be aiming for.

Parenting plans are challenging and involve giving ground and respectful negotiation. They get done at a difficult time for everyone so utilise the assistance of a good mediator if your communication with each other is poor.

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Check out some of our FREE family law resources HERE

And if you’re struggling and need low cost help with your documents or the legal process contact me at:
mark@TheLegalEagle.com.au

When it comes to Judges making decisions, one of the key things that is relied upon is an Applicant’s (or Defendant’s) affidavit.

The word “Affidavit” is Latin for ‘declared under oath’ and the person who writes the affidavit and swears an oath that it is truthful is called the Deponent.
Affidavits have been around for hundreds of years and they’re very important if your matter is going before the court because they are a statement of the facts and evidence in your case which you wish to show the judge.
So what is this thing called an affidavit, and why is it so damn important when it comes to family law court battles?
When you start an application to the court to have them hear your matter (an ‘Initiating Application In A Case’), your application in most cases must be accompanied with an affidavit.
Whether your seeking parenting orders or financial orders from the court, this affidavit is a crucial document as it allows you to set out the evidence to support the orders you require. It’s a document the judge will want to take a close look at, so if your self representing you need to make sure it’s not a dog’s breakfast or an endless rant. Time and time again I have seen poor affidavits thrown out by the court because they failed to address the issues or orders requested AND provide clear unbiased evidence to support them.
Indeed, some long winded affidavits can put an old telephone book to shame.
Always remember that the courts are busy and judges don’t need to read about every twist and turn in your family dramas or peruse every nasty sms or email that the two of you have sent each other over the last year. Hallelujah!

Preparing An Affidavit
It’s critical that your affidavit looks well presented and reads well.
You don’t have to write like Bill Shakespeare, in fact it’s best to keep what you need to say in simple English. There are also some really easy ways to structure an affidavit well.
Although the Federal Circuit Court does allow for affidavits to be hand written, please don’t. Always ensure that they are typed.
By the way, in the Family Court, affidavits must always be typed.

• Type on only one side of an A4 page
• Have enough space between the lines so that the affidavit is easy to read.
• Use a standard font such as Verdana, Arial or Times New Roman.
• No crazy fonts and no bolding or USE OF CAPS in your affidavits.
• The size of the font should be no smaller than 11 point and no bigger than 13. So 12 point is perfect!
• The affidavit should be divided into paragraphs and…
• The paragraphs must be numbered.
• The pages must also be numbered in the top right hand corner.
• Each paragraph should be short and deal with one issue only.
• Each paragraph follows on logically from the previous one.
• And importantly…be as brief as possible
• A good tip to draw the Judge’s attention to the evidence and facts you are presenting is by using headings that separate the issues in your affidavit. For example, a subheading might be ‘Arrangements for the children after separation’, ‘Incidents dealing with domestic violence’ or ‘Property accrued during the relationship’. [These headings shouldn’t be numbered]
  
  

Presenting Your Evidence
I’ll keep this brief as you should too and say one thing, keep it factual and don’t embellish the facts with an interpretation that puts you in a good light or attempts to diss your former partner or spouse. I can assure you that most judges will see this coming a mile off!
The use of humour, despite being sometimes needed in the court, is again a no no in any affidavit.

Presenting Your Children’s Opinions
Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.
However, if your children have said things to you that support your orders or can give the judge a better understanding of what is happening, you should include these in your affidavit.

Again, it must be relevant to any orders you are seeking. Always ensure you frame children’s comments in a  factual way. Where you are not 100% sure what was said use the expression ‘words to the effect of’.

For example, this is a good way of doing this:
After returning from her visit with her mother on Friday May 12 2019, my daughter stated words to the effect of “I am frightened of mummy because she screams at me when I make a mistake”. 
And this is bad:
My daughter looks really upset when she returns from visits with her mum. She screams at her when she doesn’t do the right thing and scares her to death. It’s so typical of her. She is mentally unsound and I don’t want my daughter going near her anymore.

Apart from it being an attempt at character assassination which won’t help any Applicant, the Court just wants to know what’s going on and how it might support the orders you’re asking for.

Affidavits By Other Witnesses
If you are relying on evidence from a third party to support your case, such as a family member, friend or professional, you will need to put that person’s evidence in a separate affidavit.
Make sure that their evidence is both truthful and 100% relevant to your case before you file any additional affidavits. These supporting affidavits also need to be signed by the person giving the evidence and witnessed by a JP, lawyer, local police sergeant or Clerk of the Court.
Don’t forget affidavits are a form of evidence, there are criminal consequences for making false statements.

Attaching documents

Federal Circuit Court
If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit. 
Examples of an annexure could be a copy of sms messages/emails, a contract of sale, or a child’s school or medical report.
If there is more than one annexure, you need to refer to each one by a number or letter; for example, Annexure 1 or Annexure A.

You also need to number each page of your annexures so the judge can easily follow your evidence. For example if one annexture deals with emails and there are 5 pages of emails between you and your partner that are relevant to your orders then you need to number each page. On this point, if you think a Judge is keen to read hundreds of emails and sms messages, think again. Only put the most relevant and important ones in.

Each annexure must have a cover page signed by the authorised person identifying the annexure as the document referred to in the affidavit. Again this would be a JP, lawyer, police officer or court clerk.
The wording of the statement is:

This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].

The statement must be signed at the same time as the affidavit and by the same authorised person.

Note: In interim proceedings, unless express leave is granted by the Judge into whose docket the matter has been allocated, affidavit material in support of an interim application must not exceed 10 pages in length for each affidavit or contain more than 5 annexures. 

Family Court
In the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to (or annexed to) the affidavit, or filed as an exhibit to the affidavit.
The document/s referred to in the affidavit must be served with the affidavit on the other party (or parties) after filing. The document/s must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required.

OK Let’s Have A Crack!
Here’s a (very brief) partial example of how your affidavit should flow:

1. I am the Applicant mother in this matter.
2. I was born on the 2nd of May 1986.
3. The respondent father John Swan was born on the 19th of May 1976.
4. I began a relationship with the the Respondent in early 2010. 
5. The Respondent and I were married on the 3rd of January 2011.
6. We separated on the 5th of July 2018.
7. The respondent and I have two children. Our son Max Louis Swan was born on the 22nd of December 2012 and our daughter Eliza Susie Swan was born on the 4th of July 2014.    
8. I am presently the primary carer of both the children.
9. The respondent sees his children once a week.
10. He picks up the children on each Saturday for 5 hours between 12 noon and 5pm.
11. The children are normally taken back to the Respondent’s home in North Smithton and sometimes to a local fun park in Woopville.
    [Here, you might insert a subheading]
    The Alleged Assault By The Respondent
12. For the visit that occurred on Saturday 11th December 2018, after the children were returned my daughter said words to the effect of, “Daddy hit me on the legs very hard when I cried”.  I immediately looked at her legs and noticed a red welt mark in the shape of what could be a belt mark on the back of her right leg. 
13. I took her to the doctor later that evening and he x-rayed the injury and prescribed some pain relief cream and applied a bandage.
14. He also gave an assessment of the injury. Please refer to Annexure 1 for this assessment
15. Since this injury occurred, my daughter has had trouble sleeping and is very anxious before her father picks her up on the Saturday.

The affidavit would then continue on to address how the other child feels about spending time with his father; Mum’s concerns as the Applicant; Alternate propositions for how time could be spent in the future; and what mum wants in terms of orders from the court.

Ok so I hope you can see the way language should be used.
♦ It is factual;
♦ Sets out a kind of time line with relevant commentary;
♦ Is not emotive or denigrates the other party.
Importantly, it is not long winded… but that doesn’t mean you can’t offer more depth where it is needed.

So remember that your affidavit is your evidence, a statement of the facts.
What it isn’t is an opportunity for you to have a rant and present a ‘soap opera’ to the court.
When drafting your affidavit keep in mind that the court only wants what is in the best interests of the kids. This of course usually means BOTH parents spending substantial time with the children.
Call a spade a spade where necessary, but if the Respondent has good qualities, mention them as well. It shows the Judge you are trying to be fair minded.
And if your still having affidavit heartaches, drop us a line at admin@thelegaleagle.com.au and one of our experienced legal drafters [for a small fee] can get it looking spot on.
 

For more family law answers visit our main page… HERE

Does what the kids feel actually matter?
Our Family Law Act in Australia makes it pretty clear that  the ‘best interests of the children’ is the main consideration for the court when making decisions about parenting. But what indeed happens when Mum and Dad separate and the kids don’t want to spend time with the parent who isn’t the primary carer?
A recent decision in the Federal Circuit Court (Weller & Weller [2017]), makes a decision that leaves little doubt that the opinion of the children isn’t an overriding reason to stop dad (or mum) from having visiting rights.

This case involved two children, aged 11 and 14. They had told both the mother, and the court appointed Family Consultant, that they were very unhappy and resistant to spending time with their father. One of the children, during a ‘Child Conference’, said to the Family Consultant that their father, on a visit to his home at Christmas, had made them stand out in the rain with all the Christmas presents he had given them because he said they had been ‘ungrateful’.
The court in its judgement noted that it is not for children to decide where they live, and if they spend time with the parent with whom they do not live. This is a matter for the parents, and if the parents cannot decide or agree, and if there is an appropriate application before the Court, then it is a matter for the Court.

The Court of course is bound to follow both the Family Law Act, and previous decisions in the court, in determining primary considerations like this. 
And in doing this, the Court must give greater weight to the need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents. It must ensure that any order it makes does not expose a child to an unacceptable risk of family violence.

But if the issue of violence is not in the mix, as was the case here, the Court must apply the provisions of section 65DAA of the Family Law Act which looks at children spending EQUAL time with their parents.
However, where Court finds that it is not in the children’s best interests or practicable (think here where a parent lives a considerable distance away from the children), then the Court must consider the children spending substantial and significant time with the parents. Of course these words ‘substantial’ and significant’, don’t have any fixed meaning.

The two children in this matter attended ‘reunification therapy’ and in one of the sessions, when their mother was also present, they all brainstormed in how they could repair their relationship with the father, including:
More compromise and discussion relating to activities they would do together; a rule regarding not swearing; that Dad would attempt to ‘not to get so angry’ and that both parents would agree not to say negative things about the other parent in the presence of the children or on social media.
[The Legal Eagle covered “the destructive powers of parents dissing each other on Facebook” HERE.]
Later at a different session, where the father attended with the children, this feedback from the children regarding their  feelings as well as their concerns regarding contact with the father was passed on to him.
The children and the father agreed on a range of things that they would each try and work on to improve their relationship. A “Contract” was drawn up which listed, among other things, the following matters:
1. No swearing
2. No unkind comparisons 
3. No bum touching
4. No calling one child fat
5. Replying to msgs and calling Dad
6. No rushing by Dad

Even though the kids were unhappy with spending time with Dad because of his off putting and at times insensitive behaviour, the court felt that the issues raised by the children were not enough to allow them to stop seeing him. While the Court appreciated that children see things differently to adults, and that in children’s eyes some things may appear more important than they would in an adult’s eyes, but it’s role is to consider ALL of the available evidence and make an assessment based on the evidence. The court did allow for a final Family Report to be done to assess whether the future visits were working well for all concerned before final orders relating to parenting were put in place.

In these sort of matters the court does have wide discretion to the weight it gives to certain factors. As children move closer to an adult age, their opinions are often given much more weight. The strength of their views, and the length of time they have held them is also important. Additionally, if the child’s views are well thought through, or are as a result of pressure on the child, will also have weight in the court making parenting decisions.

As the court noted in this matter, “The Court is charged with the task of assessing what is in these children’s best interests, and it does this by, in part, turning its mind to weighing the probabilities of competing claims and the likely impact on children in the event that controversial assertions are acted upon or rejected. This includes the possibility of these children continuing along a trajectory of a fractured relationship with their father which may well be on its way to being beyond repair, if it is not already.”

And indeed what is the greatest risk in the long term?
Is the risk of losing a child’s relationship with one parent the greater risk?
It is here that the long term affect, throughout a person’s life, of having no contact with one parent can have devastating and psychological consequences.

Find out about more about what happens to the kids when you separate HERE.