Isn’t it best for the kids if we just agree to agree?
Parents normally want what is best for their children. We are often asked by clients why the parents shouldn’t’ continue with an informal arrangement, and agree to just ‘be reasonable’.
Parties who are getting divorced or ending a de facto relationship do not in reality, for the balance of their lives, behave in a reasonable manner towards each other. Family break up is very emotional, and in our experience human beings are not very good at behaving in a rational manner while they are emotional. You may be able to behave in a rational manner most of the time, but there will just simply be times where you are both emotional and that does not result in a child focused decision. If there are orders in place, then it is less likely that the children will become part of any arguments.
The conflict between Mum and Dad can have a large impact on the children of the relationship, and reducing that conflict by entering into a binding agreement is, more often than not, beneficial for the children. It is also beneficial to children to know when they are seeing each parent, when they will be sleeping at each home, and to have a structured approach to these issues. They no longer have the certainty of having one home, they now have two homes. It is beneficial for children to know when they will be at each home, and when they will see each parent. Flexibility is great, but on the whole, structure and certainty is best for children.
The Family Court actually says, in a brochure available on their website, that—‘Good quality parenting’, that is parenting that provides structure, warmth, emotional support and positive reinforcement, has been found to reduce the impact of conflict. Hopefully once the parties have entered into a set of orders regarding the children, they can focus on this sort of parenting.
The court brochure also states that a high proportion of relationships experience conflict for the first two or three years after separation. If you and the other parents are discussing things amicably at the moment, now is the time to enter into Orders, so that if issues or conflicts arise between Mum and Dad in the future (for instance when someone re-partners) then there is a structure in place and hopefully, the children can continue to spend real and meaningful time with each parent, without the conflict between Mum and Dad interrupting that relationship.
You should read the brochure Parental conflict and it effects on children on the family law court website by clicking here.
What about a parenting plan?
A parenting plan is not an enforceable document, and so if one party refuses to hand back the children, then the parent who is not seeing the children cannot enforce that parenting plan. They must instead obtain a family dispute resolution certificate and commence Court proceedings.
This process takes some time and so the the parent will wait many months before seeing their children. In comparison the penalties for failing to comply with Orders are substantial. We find parents are far more likely to comply with consent Orders, because they know that they are enforceable.
The Family Court has a brochure called Parenting orders – obligations, consequences and who can help, which is about the process for enforcing, and penalties for not complying with parenting orders. You can click here to read that brochure.
Can the children choose?
We are often asked by parents whether, and at what age, their children can choose which parent they live with. This is probably in most cases a genuine attempt to do what is in the children’s’ best interests.
Pragmatically however, choosing between parents is a massive decision for children to make. The Family Court website states that you should not make the children choose between parents, they should be allowed to love both, and you should not involve the children in your argument with the other parent. Asking a child to choose the parent they will live with is of course including them in your argument regarding when and how the children will spend time with each parent. If they choose one they automatically reject the other parent, and they are aware of this.
If you have any questions about how to have a child focused approach to raising children separately, you should make an appointment to see Jacinta Watkins and discuss your matter. Our initial half hour appointment is free, and Jacinta will be able to explain to you what can be done and how much that would cost you.