Deciding who the child lives with, previously called Residence, and before that called Custody, is probably the largest and most contentious subject which needs to be resolved when couples with children separate.
Quite simply, it relates to the living arrangements for children.
Where there are children of the relationship, once upon a time, one parent or the other would have “Custody” or “Residence”.
This was full-time care and control of the child, their day to day welfare, housing, clothing and responsibility for their education.
The other parent, the non-custodial or non-resident parent, would have access or contact (now referred to as spending time with). The situation was often unfair, but was quite clear.
The arrangements for the children were set either by agreement between the parties, or by order of the Court, and they very rarely changed.
The situation has become somewhat more flexible (and some people say more vague and difficult to manage), with the concept of “shared parenting”.
The theory presented in the Act created by Parliament is that the starting point for the determining who the child lives with is that neither gender of parent is deemed to be more or less capable.
The primary focus of the Court and the law, has always been to look at which environment and which arrangements are the best for the child.
It is often difficult to get parents to see this point of view, and to focus on the welfare of the child.
Unfortunately, all too often, the children are seen as chess pieces in a game of revenge, or tools to be used to gain an advantage.
1. THE BASIC CONCEPTS
(i) Shared Parenting
The Parliament and the Court now want to see parents take joint responsibility for caring for and raising the children.
They acknowledge that there will always be one parent better equipped to take the lead.
The old concept of custodial and non-custodial parents (effectively the old arrangement of one parent taking on virtually all responsibility, and the other having contact alternate weekend and half the holidays), is no longer automatically the position.
The Courts will look at what is best for the children and what actually works for the parties.
Having said that there is a new flexible view-point, by far the most common position is that one parent will plainly be better equipped at, have the better skill set or lifestyle for, or have the more experience at, caring for the children.
It is quite often but not always the female partner with these attributes.
Statistically, the traditional arrangement where “mum gets the kids” and the father of the children spends time with them, for all the change in terminology, is still by far the norm.
These arrangements have a flow on effect when it comes to dividing property.
The thinking of the Courts and the Parliament is that, if a parent is going to have the children living with them, it is quite likely that that parent’s ability to earn income and create and maintain assets, will be impaired.
Consequently, property settlements are adjusted in favour of the parent with whom the child lives.
This is yet another source of conflict as, often, the other parent, does not understand why, “on top of losing the children, I lose the bulk of my assets”.
This is sometimes compounded by the fluid nature of the new living and shared parenting arrangements, where, for example, a property settlement is biased in favour of one parent who has the children live with them, but, sometime later, either at the request of the children, the order of the Court, or by agreement, the children’s living arrangements change, and the child or children going to the other parent.
There is no mechanism yet for changing the property settlement arrangements, those arrangements already have been made and settled.
2. WHAT IS BEST FOR THE CHILDREN?
This seemingly simple concept is:-
(i) hotly contested; and
(ii) very often lost or forgotten about in the sometimes ugly contest over who the child lives with.
(iii) parents lose focus on what is best for the children, and the children become caught up in the other agendas of their parents:
(a) revenge, petty games, distraction and competition.
An entire industry has grown up to support and determine this issue. Social workers, psychologists and report writers tend to give the Court focus or at least an independent view point to balance the lies and aggressive views of the two parents involved.
3. SO HOW DOES IT WORK?
When parents slip there are practical decisions and arrangements to be made:-
1. who stays in the house;
2. where are the children staying;
3. what arrangements for those children to spend time with the parent the children do not live with;
4. what about School;
5. who is paying for these expenses.
You might be surprised to hear that in the vast majority of cases, statistically, these arrangements are made without too much trouble, and many times, there is actually no need for intervention by the Court.
The parties simply “work it out”.
Where this cannot be done the Courts will look at a range of factors:-
(i) the age, the skill-set, work obligations, capacity, relationship and proposals for care from each parent;
(ii) the age of the children;
(iii) whether one proposed household is unsafe, whether one proposed household is clearly better for the children than the other, when the children are old enough any wishes or preferences expressed by those children.
There is by no means an exhaustive list. Each set of facts relating to each family may have its own particular critical issues that need to be looked at.
4. ALLEGATIONS
Quite often, where there is a dispute as to where the children should live, one parent will make allegations against the other.
Common examples are:-
(i) abuse or neglect of the children;
(ii) substance abuse;
(iii) poor parenting;
(iv) lack of focus on the children;
(v) inappropriate relationships which affect the children;
(vi) “poisoning” the children against the other parent.
In these circumstances independent evidence is called for, and the Court will often appoint an expert to observe the players and provide a report.
The conclusions in this report are often vital to the outcome of the matter and are hotly contested.
It is absolutely essential that if you find yourself in this situation, you understand the dynamic at play, understand the rules and structure of the reporting process, and work towards your ultimate goals, whatever, they be.
Parties will occasionally commission their own reports which are important. The Court appointed expert however is one of the most important players in any contested children’s situation.
The expert will usually have a series of contacts with the players in different configurations and settings:-
(i) the expert will speak with each party individually;
(ii) the expert will often but not always speak with the parties together where it can be done in a civil and beneficial way;
(iii) the expert will almost always observe each parent interacting with the children, and a visit to each household is often on the list.
As a result of these contacts, and the questions and answers provided, the expert will provide a report setting out observations, conclusions and recommendations. This report will be a main factor in the Court’s decision where parties contest who the child lives with. It is essential during this time, that any interaction you have with the report writer “puts your best foot forward”.
It is important to be calm, rational and child focussed.
You should avoid any attempt to be drawn into arguments, and risk being portrayed as unbalanced, biased, irrational or revenge orientated.
You must remember that these experts observe and interact with families every single day, and whilst they certainly do not always “get it right”, these experts have vast experience at seeing through facades to get to any real underlying problems.
The key issue these report writers are looking for is a focus on the welfare of the child.
The report writer will attempt to put you in a situation where you are forced to choose between your own interests and those of the child. This will test your child focus. How you deal with these situations, and whether you portray yourself as prepared to make decisions for the children’s benefit, will determine the conclusions in this report.
Having said this, where you believe that your child is at risk or your child will not benefit from a particular scenario, you should be clear and calm, but adamant in explaining why this is the case.
Conceding points put to you, for the sake of “appearing reasonable” is not always a step forward. The key to navigating through these issues, is to maintain your focus on what is best for the child.
If you get a report with recommendations that do not suit you, or with which you do not agree, there are certainly things you can do.
You will have the opportunity to cross-examine the report writer at any hearing. You always have the opportunity to make other arrangements by agreement with your Ex.
You can commission your own report in an attempt to show that the Court expert has missed the point, or that that report is flawed.
Ultimately, the Court will weigh up the evidence and the often vastly differing versions of capability and history, and will make a decision as to where the children will live and the time which they spend with the parent whom they do not live with.
These orders are not permanent.
As children grow older, circumstances of the adults change, and more evidence comes to light, then there will be grounds to show that things have changed, and the arrangements should be different.
Children grow in capability and resilience as they grow older, and arrangements which may be inappropriate for quite young children, might be beneficial and desirable in older children.
Children, as they grow older, also are able to express preferences.
These preferences are relevant though not decisive.
It is quite common for children to express preference to move away from a parent, simply because it is perceived to be “easier”, or more desirable to live with the other parent.
These changes are now much more frequent as a result of the shared parenting regime.
There is as yet, no mechanism for adjusting property which is apportioned on the basis of who the children live with, where these arrangements subsequently change.
This may develop in the future as a result of the sharing parenting regime.
5. Practical tips for LIVING ARRANGEMENTS
(i) What is best for the children:-
Make a genuine decision without emotion, in as unbiased a manner as possible, about:-
(a) whether the children are at risk in your Ex’s household, that is, is their safety or development compromised in that household, this does not mean, “I don’t like my Ex or the new partner or I don’t approve of their lifestyle”;
(b) what evidence is available to support your view;
(c) is there anything which can be done to rectify this situation whilst still allowing the child or children some kind of time with that parent.
(ii) The interest / monitor / enquiry / inquisition / poison process in many cases, the only window that you have into your Ex’s lifestyle and the effect that it may have, is though information from your children on return from spending time with your Ex.
Children are very quick to perceive that:-
(a) they are being quizzed;
(b) there is an opportunity for mischief in this;
(c) there is advantage or influence in providing a skewed version of the facts.
Despite all of this, at its most basic, perception that children have of events in conversations, is inevitably simplistic.
Be particularly careful to determine where you are on the line between interest and inquisition, when your children come to spend time with you or come back from spending time with your Ex.
In addition, be particularly careful of the weight that you give to information that you are provided with in these circumstances.
Notwithstanding this, it is important to keep a diary and record times, dates and places and as near as possible details of information provided to you which has a bearing upon your child’s welfare. Contemporaneous notes can be particularly powerful pieces of evidence.
Moving Away
Up until the turn of the Century, if a parent who had the children live with them moved away from the City or Town where the other parent lived, this was seen as “too bad”.
In the last decade however, Courts have started to intervene in this arrangement to protect the time that the child has with the parent they do not live with.
Courts are now saying to the parent who is moving, “you cannot move or you may risk losing the child living with you” or alternatively, “if you do move you will face a higher burden of ensuring that the child can still spend time with the other parent”.
In short, parents with whom a child lives who are moving (and to a lesser extent the parents whom do not have the children live with them but spend time with them), are being forced to consider the effect that this move will have on the time that the child will have with the parent they do not live with.
This is a great relief to parents who do not have their children living with them who previously would have had to accept the change in arrangements.
6. FLIGHT FROM THE JURISDICTION
Very rarely a parent will abscond from the jurisdiction taking the children to another country in an attempt to defeat the authority of the Australian Courts.
There have been a handful of high profile examples in the last decade which have been resolved in several different ways.
The Australian Family Court has jurisdiction to deal with children of Australian marriages, and people ordinarily resident in Australia
This is not yet working satisfactorily.
7. COMMON STRATEGIES USED BY PARENTS
Sadly, children are often used as a means of continuing the conflict between parents. This can become a long entrenched habit for all of the parties, and a never ending cycle having a serious effect on the well-being and outlook of the children.
Common strategies include:-
(i) Constantly pleasing the children after hand-over.
(ii) Monitoring and commenting on any piece of contact.
(iii) Overlaying the parents interpretation of events, with their own particular bias.
(iv) Attempts to “poison” the children, that is, constantly making suggestion that the children are unsafe in your Ex’s household, that there is something improper or immoral in the Ex’s conduct, or painting your Ex’s activities as stupid or improper.
8. THE PROBLEM WITH THESE STRATEGIES
The problem, as mentioned earlier is that children are quite perceptive to these tactics over time, and will either:-
(i) form the conclusion that you are bias, obnoxious and opinionated, and side with your Ex anyway;
(ii) attempt to gain influence by selective release of information, or exaggeration in some sort of power play.
Once a child discovers that there is power in the release of this information, you will not be able to rely on, interpret, balance or filter any of the information you receive at any time thereafter. The battle is consequently lost.
Not only that repeating these allegations, may well make you look like a fool if they are later proven to be incorrect.
9. THE SOLUTION TO THESE PROBLEMS
Communicating directly and calmly with your Ex. The line to take in many cases where you receive information which is disturbing, is to ring and say words to the effect of, “I’m not sure what to make of this but I just felt that I should let you know that this was said ….”. You are pretty much guaranteed to get some kind of response, and you can make up your own mind as to what value and truth that response has.
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