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 from 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 or exposed to abuse, neglect or family violence. This greater weight will then override the potential benefit of a child having a meaningful relationship with both parents. The court must ensure that any order it makes does not expose a child to an unacceptable risk of family violence.

However, 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.
There’s an important proviso here, you see where the 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 the Weller matter attended ‘reunification therapy’ and in one of the sessions, when their mother was also present, they all brainstormed on 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 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, the feedback from the kids regarding their feelings and concerns about contact with their dad 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 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, 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. Final orders were then put in place.

In these sort of matters the court does have wide discretion in 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 being put on the child, these things will carry weight in the court when 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?
Is there a long term psychological effect on a child who grows up and has no contact with one parent?

In almost all cases except those involving sexual, physical and psychological abuse, I feel that the Family Law Act has got in right in presenting a roadmap that endorses it is in the best interest of the child to have both parents substantially involved in their child’s life.

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

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Separation and divorce might leave you feeling down, but if you don’t prepare properly and remain calm you could end up down and out. I’ve prepared some simple tips on how to approach the separation and divorce process so you stay organised, in control, sane and healthy.

Most couples want to keep their separation and divorce out of the courts so they can save time, money and the emotional strain of dealing with courts. However, to do this both parties must really trust each other and go into any settlement talks with fair and realistic expectations.

NEGOTIATION is the best way to sort out your separation and any issues with organising the parenting (where there are under 18 children), and any division of your property.

The way you behave can impact on those divorce negotiations. You can carry on and derive short term pleasure through being difficult or seeking revenge on your partner, or you can think strategically for the long term. While there are many things that you can’t control in your divorce and negotiations, you can always control the way you behave and where you exert your energy.
You need to think in a tactical way when you’re negotiating and it all starts with being prepared and organised. And even if informal negotiations seem to be going well, never sign off on anything until you double check with a family lawyer.

Being organised

Money money money

Often when relationships are travelling well there is a high degree of trust placed in those who may take the role of “financial controller” or “chief bookkeeper” in a relationship. However, once the relationship is on the rocks a successful divorce will be dependent upon how knowledgeable you are about you and your spouse’s financial circumstances. You need to know the answers to critical questions, such as:

♦ What are your assets? (House, shares, other real estate, other investments, companies you have set up either individually or together)
♦ What is the value of both parties superannuation? (This is in most cases it added to any divisible property pool and normally split) 
♦ What does it cost to maintain your lifestyle?  (How will that change after separation – will it be more, or less?)
♦ What are your expenses? (Get it down on a spreadsheet)
♦ What are your liabilities? (Get them down as well)
♦ What will it cost to send any children to school, college or university? (Future expenses need thought)

♦ Have you included contingency money if things go wrong?
♦ Are health, household and car insurance costs covered?  (With cars, don’t forget depreciation)

You need to calculate your future living costs before negotiating any settlement.
For example, be aware of your future costs in running a household and looking after any children, and of course, yourself. Use previous household bills and bank statements to properly document what those expenses will be. 

Even if you haven’t been the one handling the finances, you should locate and make copies of monthly statements of all your joint and individual bank, credit card, mortgage and retirement accounts. Think of any other financial documents that are important and make copies of these as well.  These records should be updated when necessary and kept in a safe place either at home or in some other secure place, as you may need them as evidence at some point.
If you can’t get important financial documents from your ex to calculate a potential settlement, you may be entitled to subpoena them through the court. A subpoena application can lead to the court making orders that the other party must provide you with documents. 

When you are armed with accurate and current financial information, you become a formidable and impressive negotiator who can work out agreements based on facts for the good of you and any children you might have.

Calculate your immediate needs and future costs before negotiating a settlement. Having previous household bills and bank statements is a great way to draw up a budget, which can also be used as a negotiating tool, in that it properly documents your expenses.

Document what doesn’t smell right

The games often begin once the separation starts and sometimes they’re not very nice. You need to put your detective hat on and document any behaviour both direct and indirect that is clearly unkind, unfair or just plain shifty.

For example, you should take detailed notes of any improper behaviour that your former partner engages in, during the separation and divorce process, which may have an effect on any legal proceedings. Threats or acts of violence, refusing or making difficult any access to children (or to financial records) are some of the usual problems. And when documenting these problems record the date, place, what both of you said or did and the details of any witnesses.

Keep any relevant emails or text messages but remember as well that all emails and texts on your phone may be made available to your former partner’s solicitors, including those that you think you have deleted. If either of you also post on social media these things can also become evidence in family law matters. Be careful what you post!

Delegate

Separation and divorce always has the potential to be a rather unnecessary burden when you take on too much. However, you don’t have to go through it alone when you have professionals who can assist. Recognise when you need help whether it be for legal, financial or emotional concerns. If you have the money, organise a top-notch divorce team that can deliver results. If your resources are low there are plenty of organisations who offer free or low charge assistance. At The Legal Eagle our lawyers do low cost work drafting documents and applications in family law matters. We can also help you with planning a strategic approach to negotiations. We stay in the background while you DIY your matter and save big bucks.
Remember, issue tasks according to professional abilities, so you can devote more of your time and your energy on taking care of yourself and your family.

If you’re keen to DIY your divorce or separation, seek some basic legal advice, if only to understand your entitlements. You should do this regardless of what your former partner says. In fact, if your former partner is telling you not to get legal advice, you should hear the warning bells and make sure you get some.

You should also consider getting financial planning advice if this is an area you’re not comfortable with. The ASIC Moneysmart page has a budget planner as well as some great financial planning advice when you’re separating. They also have a financial counselling service. Plus the wonderful people at Relationships Australia can also hear you out and point you in the right direction.

Staying in control

When you’re feeling vulnerable it is easy to fall into the trap of signing documents or making verbal agreements to things you are not comfortable with, or just impractical. Take your time and always consider your options. It helps to get the advice of those you trust, such as your lawyer or close friends and family, but keep in mind that everyone will have an opinion. At the end of the day it’s your life and your future, and you alone should gauge, on the basis of all the advice you’ve been given, what is best for you.

So remember, do not rush into any interim agreements with your former partner on parenting or financial matters, as any agreement may have considerable emotional sway on both of you when it comes to negotiating your final agreements.

Choose to take control of your life by taking considered action. Where you have planned your future roadmap there will be less chance you will react and act with anger or revenge. Plus angry behaviour always comes back to haunt people and can negatively affect your negotiations or any court proceedings.
If your feeling overwhelmed and emotional during a negotiation, simply acknowledge that you don’t want to discuss anything right now. Take some time out so that you can breathe and clear your head. Being calm and composed often requires good timing to get you back on track with a more considered and strategic approach.

When it comes to your kids

If you have children who are under 18, try to see things from their perspective. Although the family law asks that the two of you do everything with the best interests of the children in mind, it’s important to give them a chance to have their say. Separation and divorce has immeasurable implications for children whether they are babies, teenagers or adults. How you handle your negotiations with your ex, particularly around custody, has important consequences not only for you and your ex, but your children, the grandparents and even the extended family.

Remember that any decisions you make with the other parent regarding their parenting should be in their best interests, not your interests or those of your former partner.
You should also protect your kids from your anger and fear by not talking badly about their other parent in front of them and by encouraging that relationship. All children are entitled to have their mum and dad involved in their lives, except in circumstances such as where there have been proven instances of child abuse.

And if you are the parent that has decided to move out of the family home make sure you keep the lines of communication open with the children. Your positive interactions with them will help with the separation process, and will also preserve a relationship for later when the dust settles and a new normal sets in.

Keeping sane

Surround yourself with people who will support you. A good support team is great and could include your lawyer or legal drafter, psychologist, counsellor, doctor, and last but not least, good friends that you can have a laugh with.

Be honest with yourself and accept responsibility for your decisions and your life. You may feel hard done by but ask yourself whether it’s worth play the victim. If you are balanced and see there is two sides to every story your children will feel little need to take sides.

Try and react rationally and not in anger because people who are clear about who they want to be in their separation, have less regrets going forward. Having less regrets really means that you are going to heal from this really horrible part of your life.

Counselling programs through Relationships Australia can also help people who are separating and/or divorcing to deal with their grief and anger, so that they can ‘let go’ and move on with a new sense of purpose and optimism. 

Remaining healthy

Look after yourself by getting out in the fresh air and taking some exercise. Making sure you eat well and avoid the quick fix of junk food. Also, be conscious of when you may be using medications, alcohol or drugs and food as props to help take your mind off things.

Keep up your social life and engage with friends and sleeping as much as you can.
That’s a recipe for a smooth divorce.
And don’t forget your spiritual side as well. Prayer, meditation or even just filling your mind with positive images and messages can be a real source of strength as well. 

The fine art of negotiating

When it comes to negotiating you need to put your emotions on the back burner. It is absolutely critical whether it’s property or child maintenance that you learn to think financially and not emotionally.

Keeping your feelings in check as much as possible is the key to thinking clearly about the important financial decisions ahead of you, because those decisions are significant. In fact, decisions you make during your divorce often have the potential to impact you for the rest of your life. Be objective and practical.

Aim to negotiate directly (a DIY divorce), rather than through lawyers or the court. However, always have a lawyer on standby when you feel you’re out of your depth. Negotiating an agreement directly with your former spouse regarding finances and parenting has positive consequences that negotiating through lawyers or the court does not bring. These include minimising hurt and bitterness, giving you more control over how you want your marriage or relationship to end and reducing legal costs. Common sense says that the more involved you and your former partner are in any agreement, the more likely that it will be workable for both of you.

Before you have a meeting with your former partner prepare, prepare, and prepare.

• Prepare an agenda for the meeting to keep it on track and ask your ex for their input.
• Be prepared by having copies of all your financial statements, asset and liability information and tax advice.
• Prepare a budget based on this information.
• Think through and then be clear on what your bottom line is when it comes to a settlement.
• Prepare by working out your opening questions and your general themes/ key messages.
• Prepare by considering what your ex might say (or not say) or do to trigger you.  What hot buttons might you press in them – and do you really want to press those buttons?
• Prepare by practicing – role play can be a great insight into how you may react to certain questions or how you may put certain interests on the table.

Ask yourself whether the location of the meeting is going to be neutral, private and safe for you. Some people like a cafe in a busy shopping centre or a meeting room at the local library. Either way, plan for an exit strategy if things are getting hot, but offer to continue to negotiate later when you are both calmer with another meeting or alternatively you could email any proposals for your ex’s consideration.

Alternatively, if you get upset, think how will you look after yourself so you can keep your emotions appropriately under control for the remainder of the conversation. Remember that no one knows how to press each other’s buttons more than the two of you, so try to not engage in this or deflect it when it’s aimed at you. The best way to do this is to stick with the agenda and not get emotional.

Get an agreement that any assets will not be disposed that are in your former partner’s name and ask them to agree in writing that they will not dispose of those assets without your written consent. If you’re still worried about this you can always put a caveat (or stop) on any property being sold that is in your former partner’s name.

Also consider whether your former partner will incur debts on your behalf post separation. If so, you may wish to advise those creditors (preferably in writing) that you will not be assuming any liability for those debts.

If you come to an agreement, talk to your solicitor about how these can be best drafted and finalised. It’s better the lawyers or legal drafters write the agreements, as hastily self-written agreements can at times be full of holes and hard to enforce.

Your brand new life

Keep a healthy focus on the future

Anyone who is going through divorce has to keep their sights trained on the future. Realise that no matter how horrible things are now, ultimately, you and your kids will be okay. There is life after divorce and with the proper planning, your single life can be productive, fulfilling and financially secure and stable, as well.

Forgive

If you are unable to forgive your ex or yourself, moving on will be a struggle. An unforgiving heart is the biggest obstacle to letting go. Find true forgiveness and you will live a full and rich life.

Grieve and then let it go

Allow yourself a set grieving period and resolve to move forward after your scheduled time to mourn. Commit to letting go of the negative thoughts after your grieving period ends.

Clean Out Your Closet

In any relationship, you often collect a lot of stuff that reminds you of your ex-partner. This is the worst form of clutter and you need to go through your house and decide what will actually serve you well after a recent separation or divorce. For the rest, if your ex has made no claim on it and all your property matters have been resolved, hire a skip bin and gleefully throw it all away!

What does the law say about child support?

The Child Support Scheme (CSS) began in 1988 and it’s job is to enforce the right of children to be supported by both their parents. The CSS is based upon the Child Support Act which requires 2 important things:

♦ That children receive the proper financial support from their parents (that they are liable to provide). So what that means is if one parent isn’t earning much while the other is doing much better, there will be a greater liability for the bigger earning parent.

♦ That periodic amounts of child support payable by any parent towards the upkeep of the children are paid on a regular and timely basis.

(The WA Parliament, because WA likes to have its own family law regime, has also created laws that adopt what the Commonwealth child support laws say.)

What if my ex doesn’t want to pay child support?

As mentioned, the law states that parents have a duty to financially support their kids (both birth and adopted). Even if one partner believes the child was an “accident” and doesn’t want to be involved, they are still required by law to financially support that child.

A parent is liable to pay child support if they are a legal parent of the child AND either a Resident of Australia, or a resident in another country that cooperates with our child support rules.

So who runs child support?

The Child Support Agency (CSA), and they are part of the Department of Human Services.

Their role includes assessing amounts of child support payable, with a slightly complicated formula but don’t worry because the  assessment in essence takes into account the income of both parents; the care arrangements that you both have in place; and the number of dependent children you have (including any dependent kids from other relationships).

The CSA can also collect and transfer child support payments, when it’s requested by parents (or carers). Some parents don’t do this because they prefer a more direct and private way of paying child support that doesn’t involve the CSA having to handle the payments.

Making an Application – Parents

A parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis. Parents can apply for an administrative assessment of child support for a child regardless of the amount of care they provide for their child.

When a parent makes an application for child support to CSA, it means that both they and the other parent will be assessed in respect of the costs of the children and the amount of child support payable will depend on the incomes of both parents and the percentage care you each provide for your children.

The percentage of care you undertake is important in the assessing child support and is usually determined according to the actual care that each of you have of the child. It also pays a big part in the formula used to decide how much child care you may be entitled to.

This actual care can be reflected in a care arrangement between the two of you or with non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child’s care.

Parents are required to notify CSA about the care arrangements and agreements for the children.

Your income is another important consideration in working out the amount of child care to be paid to the primary carer. If either of your incomes and/or care percentage changes, it’s important to let CSA know. It may mean a new application for child support is needed.

If either parent is not a resident of Australia on the day of the application then there are additional considerations.
And it’s comforting to know that Australia has reciprocal arrangements with many countries around the world that will enforce your rights to child support.

So how do we make an agreement about child support?

Parents may make a child support agreement and can choose to organise collection themselves or collection by CSA. Parents can make agreements regarding the way in which child support is paid, for example through periodic cash payments, non-cash payments or a lump sum payment (including by way of property settlement).

Here’s some information on making a child support agreement

There are two types of agreements: binding child support agreements and limited child support agreements.

The main difference between them is that parents are not required to obtain legal advice before entering into a limited child support agreement. These limited agreements can also be terminated if you both agree, and if not, by a court order. Also, the amount of child support payable in a limited child support agreement can’t be less than the amount calculated in your child support assessment.

Find out more about limited child support agreements HERE

Find out more about binding child support agreements HERE

Both these agreements must be in writing and signed by both of you and any other person taking a major role in the child support who is part of the agreement.

HERE is the official form the government provide for a child support agreement – read up about what you need to know before you both fill it in and agree to it. 

Applications from non-parent carers

A non-parent carer can apply for an administrative assessment of child support for a child but they must be an eligible carer of the child and are not living with either parent as a partner  on a genuine domestic basis and don’t have care jointly with a parent of the child. If this situation applies to you, talk to the staff at the CSA.

Estimate what your child support may be with this CALCULATOR

(You should not rely on an estimate as a guarantee for future income or payment.)

When does child support end?

There are a few scenarios when child support ends:

♦ Normally child support will end after your child has turned 18. It is possible for child support to be extended after 18 years of age if you apply for child support to continue until the end of the school year during which your child turns 18. Additionally, if your child has a physical or intellectual disability, extensions may also be possible.

♦ if your child is adopted by someone else.

♦ If your child marries or starts a de facto relationship.

♦ If neither of you is caring for the Child

♦ If you both restart your relationship.
It’s also important to note that just because a child starts working before 18 that doesn’t mean you automatically stop paying child support. However, if you are in a situation where your child is over 18 and still requires support, you definitely have grounds to appeal any assessed amount if that child is earning money.

What if my child needs help but is over 18?

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. However, where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child.

Other resources

The Department of Human Services (Child Support) also provides some handy information for all parents (whether married, de facto or same sex) on how the child support assessment works.

Don’t forget to check out all the great family law solutions we have for you > HERE