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.

Tom had decided that enough was enough. Feeling hard done by in his parenting matter before the courts, he decided to take to social media and attack all and sundry. No one was safe in his tirade as post after post criticised his ex-partner, the Judge and even the lawyers on both sides.
“I’d pretty much had a gut full of the family court and all the game playing and long winded rubbish that comes with it”. For Tom, venting on Facebook was his way of letting off steam to his friends about not being able to see his kids for many months. “Don’t get me wrong, I’m not some internet troll, I just wanted to let my mates and family know that what was happening to me and the kids was shitty”.

Unfortunately, Tom’s approach is an absolute no no when it comes to the court. When dabbling in social media you really have to be careful about what you post, regardless of whether you’ve got a family law matter in the courts or even a simple property dispute. Yesterday’s angry posts can come back to haunt you tomorrow!

Five Ways to Avoid a Family Law Disaster on Social Media

1. DON’T PUBLICISE YOUR FAMILY COURT MATTER
The Family Law Act is the law that guides the courts when it is making decisions about your matter. One thing it prohibits is publication of the details of family law proceedings.  And by publication that doesn’t just mean mentions of your matter in newspapers, television and radio. Publicising anything about your matters before the court on Facebook, Twitter, Instagram or any other social media site is strictly forbidden. In fact, even if your an amateur blogger writing to a limited audience it is still considered a violation of the law [Section 121, Family Law Act]. It doesn’t matter how minor the proceeding is, even the simple issuing of a subpoena can not be talked about to third parties.

And while non-court-based family services, such as family counselling and family dispute resolution procedures, are not “proceedings” these services are subject to confidentiality  provisions so any communications made under these conditions should also not be disclosed to third parties.

In one case a father posted on his Facebook page photos of the mother and children and information identifying where they lived. The Judge regarded these postings as publishing, describing the father as having “caused to be placed in the public domain on a public Facebook page viewable by anybody who should choose to look upon them”. He concluded that the father’s actions were  in breach of s 121 and ordered that he remove the posts and be restrained from posting on the internet or publishing any photographs of the mother or the children or any reference to, or comment about, the mother or the children or the proceedings.
The thing is, Section 121 is aimed at giving privacy protection for people involved in family law proceedings. And the court takes this seriously with penalties that include fines  and even imprisonment for up to 12 months.  Yikes!

2. POSTS CAN COME BACK TO BITE YOU
Posting on social media and is now affecting the outcome of family court cases on a daily basis. One Family Court Judge has stated that social media “is a veritable ‘Aladdin’s Cave’ which parties  readily and regularly explore for incriminating ‘evidence’ to be used in litigation”.Whether it’s a parenting or property dispute you need to be ultra careful what you put out on social media to a potentially wide audience, which may include the other parties’ lawyer.

Posting when your away with the birdies on drugs or alcohol 
A drunk night out with a mobile phone close at hand can lead to some inappropriate posting, but those morning after blues may hit you hard when your offensive ramblings or lewd pic posting is raised in court as evidence you’re an unfit parent.

Threats – whether meant or not
This should go without saying … But don’t threaten your ex on social media. Don’t even jokingly threaten them. It’s illegal and it can be used against you in Family Court (if not criminal court).
In a 2015 case, a father’s Facebook posts were found to be a deliberate attempt to intimidate the mother where he posted a person holding a gun with an indirect reference to his ex-partner.
In another matter, the mother relied on the father’s Facebook post of an image of a man assassinating a woman by shooting her and making her fall off a cliff. The Judge noted that this demonstrated that the father has no contrition or insight as to how such image could affect the mother. 
So even indirect intimidation can highlight to the court problems with your character.
Posting about anything to do with an ongoing family court matter
In another reported case a status update from a mother was admitted as evidence in proceedings. The mother had posted on her Facebook profile:
“I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000”.
Here mum was found to have deliberately prolonged the proceedings with the above status update used as evidence. The Judge concluding that the mother had abused the Court process and had exploited the father by making him incur further legal costs and had wasted the Court’s time and resources. A $15,000 costs order was made against the mother. Ouch!
Publicising your poor lifestyle choices
In another case, a dad’s Facebook posts about his larrikin drunk flatmates left the Judge with no doubt that the father could not be trusted with overnight stays with his child. Despite the fact that dad had arrangements for overnight and weekend stays the Judge overruled the original orders due to the evidence presented about his posts. The Judge made future overnight contact conditional upon the father having his own residence. The Judge noted that: “Put simply I do not trust his choice of friends. This is apparent from the Facebook exchange. He says that none of the people he currently lives with participated in that exchange. But that is not the point. He is plainly happy to have extremely undesirable people as friends and acquaintances.

3. FACEBOOK FIGHTS AIN’T IN THE BEST INTERESTS OF THE KIDS
“He is a hopeless father”, “She is such a loser”, “OMG I hate him so much”
One of the Courts obligations is to consider the relationship of the parents and their ability to facilitate and encourage a relationship between the other party and the child. These sorts of comments hardly give that impression.
If the matter is already in court, one of the most common orders that a court will make is a “non-denigration order”, that is that neither party shall denigrate the other in the presence or hearing of the children. If your child is your friend on Facebook (not recommended) then this would constitute a breach of that order.

4. TWEETS AND POSTS CAN SPREAD LIKE WILDFIRE
Facebook Information can be shared very quickly. Even if you think your settings are totally private, another person can re-post photographs of you and make commentary about where and why the pic was taken. Other people are able to tag or identify you in photographs, even if you do not want to be tagged or identified. Reckless and irresponsible posts on social media can be used in court against you.
Your ex’s lawyer may be inclined to try to subpoena that information as part of the overall case, including any email sent to you as part of that Facebook account. They may also ask you in the discovery process (the pre-court stage where each party can demand information from the other) to disclose your Facebook account password and log in information, so they can see what is contained in those emails and the private parts of your Facebook account.  So nothing really is sacred when it comes to fighting a family dispute in the courts.

5. KIDS ARE CURIOUS CRITTERS
Another pertinent reason why you should watch what you post on social media is the impact it can have on your kids.
It is not unusual for children to view the texts, emails and photographs on your mobile or computer. And remember that in doing this they could  also discover things that might upset them, like stuff showing that your involved in an extra marital relationship or that you think their dad is an ass.  These social media postings may be embarrassing and confronting for them. Their school friends may also have access to your social media postings which could lead them to possible bullying and ridicule.  Don’t forget that in family law the primary concern of the court is whether something is in the best interests of the child.

Tips For Keeping Out of Social Media Trouble

• If you have Facebook on your smart phone, delete the App before you leave home. This will remove the temptation to write anything about your former partner on Facebook and allow you some time to reconsider the photos that you post or comments you make.
• Make sure you lock your social media accounts so your kids can’t see anything that might upset them. Plus if any of your content is potentially going to do this – remove it.
• Tell your friends not to post any photos of you without your approval.
• Change your password — Ensure that only you have the password to access your account. Check your privacy settings — Check who can see your profile and how much of your profile they can see.
• Ask your friends that you have to first approve any “tagging” of yourself in photos. 
• Review your “friends” list and remove people if necessary — People whom you considered “friends” during your relationship may not be post-separation. Such “friends” may be waiting to take a screen shot of your slip ups.
• Think before you post — Remember that everything you post has the potential to find its way into evidence in your proceedings.
• Do not post about your proceedings or your former partner. Be child focussed. If you would not want a Judge to read it, do not post it!
• Consider going offline — It may be best for you to avoid using Facebook (and other social media) until your Family Law proceedings have concluded.
• And finally, don’t over share – parents need to be careful regarding the overuse of social media to share content based on their children, especially where the other parent doesn’t agree.

CLICK to >   Find out what the deal is with CHILD SUPPORT

What is violence?

Family violence – means violence, threats or other behaviour by a person that coerces or controls a member of a person’s family, or causes a family member to be fearful.

A child is exposed to family violence even if the child sees or hears family violence.

The Family Law Act gives examples of what violence is, and they include:

• Being assaulted which can include being pushed, slapped, punched and even threatened with physical violence
• Being sexual assaulted or other sexually abusive behaviour
• Being stalked
• Having derogatory taunts said to you
• Having someone intentionally damage or destroy property
• Having someone cause injury or death to an animal
• Being denied financial independence to conduct your daily affairs or having financial support taken away so that you can’t meet your daily needs.
• Being denied access to your friends, family, church and/or your culture
• Being denied of your liberty by being confined at home with no right to come and go.

Family violence may also amount to abuse of a child.

Child abuse means:

♦ An assault, including a sexual assault, of the child; or

♦ When a person involves a child in a sexual activity with themselves or another person in which the child is used, directly or indirectly, as a sexual object by them or the other person, and where there is an unequal power in the relationship between the child and the first person; or   
♦ Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

♦ Serious neglect of the child.

Court orders to stop violence

If you experience violence or fear violence in a domestic or family relationship you can apply for an order from the court to help stop that violence. Even if you are waiting for your matter to be heard by a court you can get an interim or urgent order very quickly which will have the same effect. The police may also press charges against the person who is being violent. Each Australian state has its own laws regarding violence orders and the actual name of the orders varies between states.

The video below talks a little about this:

An AVO made in any state or territory of Australia can be registered for enforcement in any other state or territory if the need arises. You may be able to apply for another type of order for your protection if you are afraid of a person with whom you are not in a relationship. In every state and territory, a person who breaches an AVO commits a criminal offence. This may lead to them being arrested. In NSW a conviction for breaching an AVO can lead to a fine of $5,500 and/or imprisonment for up to two years. The courts take a very dim view of people who breach AVO’s.

If you need information, support or help

Call: 1 800 RESPECT (1 800 737 732)

If you don’t feel comfortable about using the phone and want to talk to them online-

Use this LINK

These services are available at all times. (24/7)

If  RIGHT NOW  you are in anyway worried about you or your children’s immediate safety or are being threatened with violence:

Call: 000 (24/7)