Parenting cases are notoriously difficult and invariably expensive. One class of case that is becoming more and more prevalent is the “relocation” case where, for one reason or another, one parent wishes to relocate and take the children with him or her, thereby disrupting the relationship that the children have with the remaining parent. There is no simple answer to this predicament particularly where the work force is becoming more and more fluid and mobile both nationally and internationally.
Perhaps the most common dispute between parents is the amount of time that children spend with each parent. Helpfully, section 65DAA of the Act provides that, in certain circumstances, the Court must consider the prospect of children spending equal time or substantial and significant time with each parent and defines ” substantial and significant time “.
Perhaps somewhat paradoxically, a redeeming feature of the Act in relation to children’s matters is that the Court is mandated to make a decision that is in the best interest of the children. The very cornerstone of the Act in relation to children’s matters is that a child’s welfare is the paramount consideration and to which all other concerns are subservient. The paradox is that is contrary to children’s interests for there to be a dispute about their care, welfare and development in the first place. Again, helpfully, section 60CC of the Act sets out how a Court determines what is in a child’s best interests and both parents need to have regard to the provisions of that section.
The Act has been amended several times such that it now stipulates that unless there is some disentitling behaviour on the part of one parent or unless it is simply impracticable for it to be otherwise, there is a presumption in favour of the parents having equal shared parental responsibility. Where the parents are unable to communicate effectively, this simply means ongoing conflict between them in relation to the long term issues confronting children and keeps them in the forefront of the conflict between their parents. Such conflict has a serious negative impact on children and will influence their relationships into adulthood.
If you and your partner have separated and there is ongoing conflict around the arrangements for the children, you and your partner should immediately enrol in and complete a “Post Separation Parenting” course. If after that you are still unable to agree, you should participate in Family Dispute Resolution. There are a number of organizations that provide this such as Uniting Care through the Family Relationship Centres and Relationships Australia. There are also numerous private Family Dispute Resolution Practitioners (of which our principal is one) authorised by the Attorney-General to conduct Family Dispute Resolution and to issue the relevant certificate at its conclusion.
If after you have concluded your Family Dispute Resolution you are still not able to agree, the signs are not good and you may be headed towards Court, much to the detriment of your children. One last avenue is open to you and that is to jointly engage a Family Consultant to conduct interviews with each parent and the children and to then prepare a report containing their recommendations for resolution, bearing in mind that the welfare of the children is the paramount consideration. If you are still not able to agree then you have a serious problem. By having adopted those steps (which are steps that a Court will order you to participate in anyway) you will have demonstrated that you have tried to resolve the dispute without Court intervention and will be able to move more quickly towards a final hearing at trial.
A far more effective solution both as to financial costs and emotional wear and tear on you and the children is to move quickly towards Family Dispute Resolution and to use your best (joint) endeavours to reach an agreement that can be embodied in Consent Orders to be lodged with the Court. You will thereby have avoided involving the children in the trauma and turmoil that inevitably follows with Court proceedings.
We repeat our warning that a judicial determination will often be one with which neither parent is happy and such outcomes can be devastating for both children and parents alike.