Hitting a brick wall: When parenting arrangements just aren’t working

When parents separate, it can be one of the hardest times in their lives and the lives of their children. What comes next can lead to uncertainty and stress for everyone involved. Moving from managing one household that once had two parents, to two households with one parent in each can be a logistical nightmare. This is even without the emotional overlay of a relationship breakdown.

What you strive for

In an ideal world, an agreement would be reached by parents as to when the children spend time with each of them and how parenting will be managed across the two household until the children are 18. Apart from some teething issues, the parents will grow their co-parenting relationship with positivity and sensitivity and get it right between them. This is often not the case though.

For some separated parents, the balance is not right and too many roadblocks impact on the flow of life in both households for them and their children. It can feel like hitting up against a brick wall with no end in sight.

What if I don't live in an ideal world?

There are options however to move beyond any impasse and towards a better future for your children. The first step we would suggest for all parents, where appropriate, is to attempt direct negotiations with the other parent.

Direct negotiations do not necessarily need to be face-to-face. Sometimes a planned phone call, an email or even a simple text to explain what is happening and what you would like to change can be helpful. If you have a parenting order in place already, legal advice should be sought as a parenting plan entered into after a parenting order can effectively vary the operation of the order in some circumstances.

Sitting together face-to-face can be ideal, talking over issues in real time and cutting down on the ability for miscommunication over multiple emails and text messages. Often there are logical and reasonable explanations as to why a parenting arrangement is not working and solutions can be found. If parents are able to discuss these issues freely and constructively, then unnecessary conflict can be avoided in this scenario.

If differences can be resolved between parents, this can be a great foundation for a positive co-parenting relationship in the future and reinforces that parents are the best people to make decisions about their children. It can also be the most cost effective way to resolve issues.

Mediation

Sometimes direct negotiations are not helpful, or are not appropriate because of family violence issues for example. In this case, parents can utilise mediation services to discuss the issues with an independent third party. This may be needed if one parent wants to significantly change the current arrangement, or there are more complex issues to be resolved, as some examples.

There are a number of options for mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new parenting plan.

Private mediation services also exist, usually at a higher cost. However, most will allow you to bring your solicitor along. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.

Counselling

Daykin Family Law works with a range of counsellors who know our industry and the specific struggles that separated families face.

Counselling can be a useful process for separated families, particularly if there has been a breakdown in one parent’s relationship with a child or a parent’s behaviour is causing issues. The counsellor can work individually with parents and children, or together, to identify what isn’t working and work on a plan to move forward.

If all else fails...

The last resort for all parenting disputes is an application to the court for parenting orders.

Depending on the circumstances, you may need to attempt family dispute resolution first. The court requires a Section 60I certificate to be obtained before an application is made to the court. This is a certificate to say you have been to mediation and made a genuine effort to negotiate, that you have invited the other person and they refused to attend or that your matter was not suitable to mediate. The court requires a valid certificate or an exception to apply before the application can be filed.

Litigation: been there, done that

In circumstances where there are already parenting orders in place, the court needs to be satisfied there has been a significant change in circumstances to warrant a change if there is no agreement.

We recommend that you seek independent legal advice if the current Orders you have in place for your children are no longer appropriate or are not working. There can be a range of reasons that a court might allow a parenting order to be varied.

The overarching consideration for the courts when making such decisions are the best interests of the child.

What if I end up in Court?

If you apply to the court, a Family Report may be needed to provide expert evidence to the court about your family and what is recommended to occur.

Independent representation of the children might be necessary by an Independent Children’s Lawyer to ascertain relevant information and assist the court in deciding what is in the best interests of the child.

If the last resort of court is necessary, then Daykin Family Law can guide you through the process. We focus on identifying issues at each step and advising you on your options, so that you can make informed decisions.

By taking a proactive approach to litigation, we have assisted many clients leave the court system sooner and get back to the important task of raising their children and moving on with their lives. We pride ourselves on only a very small percentage of our matters making it to a final hearing in the court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.