Surviving your Divorce: Chapter 21- Giving evidence at Trial

Giving evidence can be a stressful time, but you should understand that it is a simple process that needs to be approached in a rational way.

In Australia in the Court system, Barristers do not carry on as you see in the fictional American television shows.

In Family Law matters your story is told by your affidavit which will already have been filed is available to the Court and the parties.

Your Barrister should only have to ask you a small number of questions in order to complete that evidence.  This saves you from having to remember all of the important facts for the entire history of the matter.

Your opponent’s Barrister will then get to cross-examine you.

This involves simply answering a series of questions.

The important rules to remember are:-

(i)            answer the question;

(ii)           answer only the question that is asked;

(iii)          do not provide additional information;

(iv)          keep calm and do not lose your temper;

(v)           remember that you are in control of the pace of the evidence; do not be rushed into answering; 

(vi)          take your time, think about the question; ask for it to be repeated if need be, and then answer in a calm rational voice;

(vii)         keep your answers short;

(viii)        do not answer the question that you think is being asked;

(ix)          remember, your Barrister will have the opportunity to clarify any matters in what is called re-examination (a series of questions asked after you have finished cross-examination).

Barristers will often use a number of techniques to attempt to get you to lose concentration or control.  Some of these are:-

(a)          rapid fire questions;

(b)          long convoluted questions;

(c)          suggesting that you’re a fool;

(d)          suggesting that you are a liar;

(e)          suggesting that you are mistaken;

(f)           leaving the subject to talk about something else and then returning unexpectedly.

Remember, take your time with answers to questions.  This allows your Barrister to interrupt if he believes the question is inappropriate, or an objection should be raised.

It is acceptable to say that you don’t know the answers to the question.  This is a far better response than attempting to guess or using expressions such as, “it was probably”, “I think it was”, or, “it would have been”.

With other witnesses giving evidence, you as a party, are allowed to be in the room. 

Your Barrister in cross-examining, will not want to be interrupted, but it is in order for you to make notes, and to liaise with the instructing Solicitor about whether or not these issues should be raised with the Barrister.  Most Barristers will stop and check with the instructing Solicitor before finishing the questioning of a witness, but it will be up to the Barrister’s discretion as to whether or not he raises issues that you believe should be raised. 

If you believe the issue is sufficiently important, then you are able to give the instructing Solicitor a written instruction that you want the issue raised by the Barrister.  This needs to be done quickly. 

It is important however that you have a measure of trust in your Barrister regarding which issues should be raised and which ones left alone. 

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Surviving your Divorce: Chapter 20- Preparation for Trial

INTRODUCTION

Preparation for Trial if the matter fails to settle at the conference or other Pre-trial steps, involves finalising affidavits, exchange of disclosed documents, completion of material in reply to affidavits filed by the other side, briefing of Counsel, organisation of witnesses, and attendance at the Trial.

This process often makes your opponent realise that the matter is serious and is suddenly becoming expensive.  Significant numbers of matters will settle at this stage by an offer from one side or the other.  This is yet another trigger in the Court process to attempt to get matters finalised.

Another event likely to bring about discussions about settlement is the appearance of Barristers on both sides.  Counsel will be briefed with only the material that is relevant to completion, and this second set of eyes on both sides, often is a reality check for the parties, with the Barristers suggesting that the matter should be settled.  Discussions between the Barristers directly are quite common.

The trial phase is often the most expensive time consuming and stressful part of a Family Law matter.  Sadly, it is often the only time that some parties fully deal with the realization that the matter is coming to an end, and if a resolution is not agreed, then a determination will be made by the Court without any input from the parties.

1.         WHAT’S INVOLVED?

A vast amount of work will often have to be done by your Lawyer including:-

Finalizing evidence, finding and proofing witnesses, finalizing valuation evidence, checking public records and organizing Police Officers and other public officials, completing and updating disclosure of documents by both sides, updating financial information and business reports, and finalizing negotiations regarding the format of the Trial.

You will need to be available and focused on the task. 

You can assist and keep your costs down by providing as much of this information as possible.  Handwritten statements by witnesses and “secretarial tasks” such as chasing these people will save time and money.

A significant amount of time is lost, and costs incurred by parties who constantly ring and re-quiz their Lawyers about the same issues.

(i)                get the advice you need;

(ii)              make sure you understand it;

(iii)             if you doubt the advice you are receiving, change Lawyers;

(iv)             get on with the process.

2.         UPDATED MATERIAL

Preparation for Trial will often include updating your own affidavit material to cover new information which has arisen since the commencement of the matter, and to answer allegations made by your Ex in his or her material.

Your Lawyer will craft this information to your best advantage.  You should allow your adviser results of an editorial control; however if you believe something is important you have the ability to give a direct instruction to your Lawyer to include that material.  You should think carefully before overruling any advice from your Lawyer.

It may also be necessary to update valuations of assets, particularly if a business is involved.

3.         DIRECTIONS HEARING

At some stage in the 4 weeks prior to the trial date there will be a Pre-trial Directions Hearing. 

This is the Court calling the Lawyers in to find out whether the matter is ready, and what remains to be done.

It will be essential to the preparation of your case that you have complied with all of the Court’s procedures and are ready for the hearing.  This will involve providing all of the information that your advisers require, and funding the matter (including costs of a Counsel), through to Trial.

4.         FINANCIAL PREPARATIONS

It is also essential that you stay in touch with your Lawyer regarding their requirements for costs to avoid the possibility of being told close to Trial, that they require a significant amount of money or they will not proceed.

This is far more common than you would think.

You should raise the issue so that you know what your obligations are and you can save and provide funds for those obligations.

5.         CONFERENCE WITH COUNSEL

At some stage in the week prior to the trial, you will be called to a conference with Counsel. 

This is in effect a rehearsal where you will meet the Barrister who will actually conduct your Trial for you.  The Barrister will have a Brief from your Solicitor which provides only the relevant information off the file, and providing it at the Trial.

The Barrister will have a number of questions for you, and will take you through the trial process.

It is perfectly in order for the Barrister and Solicitor at that stage to run you through your evidence, and to advise you on tips and rules for giving evidence.

It is completely improper for them to “coach you”.  By this it is meant, suggest to you that your answers or your evidence should be particular things.  Most Solicitors and Barristers know how to conduct these conferences without creating this difficulty.

6.         THE ROLE OF COUNSEL

The Barrister in your case has been engaged to argue for you on the day.

This might seem like a little bit of duplication, “surely my Solicitor knows all about the case and would be best to handle it”.

With anything other than simple routine appearances, this is often not the case for several reasons:-

(i)                The Solicitor has anywhere between 50 and 100 files with clients all pressing for their matter to be completed; the Barrister might have 3 or 4 and can therefore concentrate on your matter solely.  The Solicitor will claim costs for both the preparation and the appearance.  The Barrister will appear for a fixed fee (though you should check that they are not charging a “reading fee”, as some Barristers have recently come up with).  Barristers are now required, in the same way as Solicitors, to disclose their fees, prior to engagement.  Your Solicitor will have a copy of this document.  You should ask to see it.

(ii)              Because the Solicitors are responsible primarily to pay the Barrister, they will ask you for this money in advance.  Delay in doing so might limit the ability to get the Barrister you want, as Solicitors will not engage the Barrister until confident they can be paid, and delay may mean the Barrister has already taken another Brief for that day.

Barristers are professional advocates used to arguing in Court every single day.  Using specialist Counsel enhances your presence in Court and enhances your prospects of a good outcome.  

7.         FORMAL OFFERS TO SETTLE AND THEIR CONSEQUENCES

There is a useful tactical ploy that your advisers may utilize to obtain some advantages for you in the event that your Ex will not co-operate.  A series of formal offers may well put him or her under pressure and expose your Ex to having to pay your costs of the argument. 

In all Family Law settlements, there is a series of offers made by either party.  These are not formal offers in most cases, they are simply proposals for resolving the matter. 

They are either accepted, rejected or a further offer is made which alters the terms. 

If your advisers believe that your Ex is being unreasonable however, they may talk to you about making a formal offer. 

This is a specific process with formal requirements set out by the Court.  If you make a formal offer, that offer does not have to be accepted by your Ex. 

If however, he or she does not accept that formal offer, and, subsequently, the Court makes an Order which is the same or worse as that Order, then you may seek that your Ex pay the costs of you continuing your argument, from the date the formal offer was made. 

This can be a quite serious threat, and it is a worthwhile tactical ploy to get your Ex to seriously consider resolving the matter.

The Courts are now quite enthusiastic about awarding costs against parties who should have accepted formal offers early in the process. 

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Surviving your Divorce: Chapter 19- Costs Orders

1.         THE PARLIAMENT’S VIEW

There is a lot of argument about the costs of Family Law proceedings, and particularly who should pay them.

In other Courts in Australia and around the world “costs follow the event”, that is, if you win, the loser pays your costs.

In every Court in Australia, including the Family Court and the Federal Magistrates Court, the Judge or Magistrate always has a discretion in relation to costs.

The Court can award costs be paid by any party (including the Lawyers for a party).

There are however some basic rules.

The Government has decreed as far back as 1975, that, unless there is a good reason, each party should pay their own costs in the Family Court.

The idea behind this is to remove costs as a weapon, and to make people responsible for their own actions.

Often however, the opposite outcome occurs.

A financially stronger party will attempt to string out proceedings to gain a better arrangement, knowing that the costs are likely to cripple his or her opponent, and knowing that there may not be any consequence of having to pay the other party’s costs.

Historically, non-compliance with the Court’s Orders has been widespread due to the perception that there is no real penalty to be paid if the Order is not complied with.

The Court was set up by the Parliament in the mid 1970’s with the idea of it taking fault and punishment out of the equation and focusing on what was best for children and families.  This has lead to parties receiving (and sometimes playing upon), several chances to “smarten up”.

Increasingly however, and refreshingly, the Courts (and the Federal

Magistrates Court

in particular), are commencing to punish parties who have not done what they are required to do.

The Courts are increasingly happy to award costs against parties who consistently fail to comply with the Rules or do not satisfy Orders and meet time lines.  This approach, in my view, has and will continue to create major improvements in this jurisdiction.

The ability to award costs has always existed but is now being used more often and more sensibly to cause parties to get on with it and act reasonably.

2.         WHAT WILL THE COURTS DO?

In any Court action and in every interim application, the Court has a discretion to award costs be paid by any party to another party.  The Court even has a discretion to award costs against the advisers to a party.  The normal situation in Family Law matters however is that each party pays their own costs.  Increasingly, particularly in the Federal Magistrates jurisdiction, non-compliance with the Court process will lead to a costs Order.  This is a trend that appears set to continue, and reflects the Courts increasing impatience with parties who do not comply with their obligations.

Notwithstanding this trend, it was always difficult to predict the prospects of getting the costs Order either for you or against you.  The best course to take is to comply with the process and take any step required (including interim Court applications), to ensure that your Ex complies.

Gaining an interim costs Order against your Ex may well be a motivator to get the matter resolved.

3.         WHAT CAN I DO IF MY EX DOES NOT COMPLY?

Compliance with Court Orders, even in the Family Court, is mandatory.  The Family Court does take a somewhat less aggressive response to parties who do not comply and will provide, in many circumstances, an opportunity to rectify breaches and failures. 

If ever your Ex breaches or fails to comply with an Order, it is essential that you display a concerted, disciplined approach by using the Court process to require compliance, and by seeking costs wherever it is appropriate.  It is essential that your opponent realises that this is a serious matter and that compliance is a requirement.

4.         TYPES OF ORDERS MADE

The Courts have a graduated range of response Orders regarding non-compliance.  They are:-

(i)                an Order for compliance within a specific time;

(ii)              an Order for compliance and costs to be paid;

(iii)             overturning the original orders (return of the child, return of the property, change of the status quo);

(iv)             Contempt of Court – Fine and possible Imprisonment.

The more severe of these Orders are only applied in extraordinary circumstances, and you can then expect that immediate and swift punishment under the full weight of the law, will arrive against your Ex, with astonishing speed. 

You should react immediately to any non-compliance, and persevere to create evidence of a course of conduct of non-compliance.  This will, at the very least, show you as the party who is prepared to do the right thing by the Court, and allow your advisers to argue that your opponent is not a credible witness and should not be believed.

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Surviving your Divorce: Chapter 18- Disclose & Hiding Assets

Both parties have an obligation, continuously throughout the matter to disclose the existence of documents and assets.

The word “document” has the widest possible definition and includes computer records, recordings, and any item which is relevant to a determination by a Court.

The parties, are often tempted to seek to hide documents and the existence of assets to gain an advantage.

Being found doing so can have particularly grave outcomes for the conduct of your matter.

Firstly, being caught hiding documents or assets will almost certainly mean that your Ex will take the tactical advantage of running the matter to a hearing to expose that failure.  Secondly, failure to disclose will mean adverse findings made by a Judge. 

Common findings are:-

(i)                not being able to give all of the evidence that you want;

(ii)              a finding that your evidence cannot be believed and that the evidence of your Ex should be accepted (this is often fatal to your chances of getting an acceptable outcome);

(iii)             costs Orders against you.

Similarly, your Ex suffers the same risk if tempted to hide documents or assets. 

You should make sure that your adviser knows of any circumstances where there are likely assets or documents that will help.

1.         ORDERS AGAINST BANKS AND OTHER PLAYERS

In the last few years, Parliament has given the Family Court the ability to make Orders against parties who are completely unrelated to the Husband and Wife. 

These include:-

(i)                Banks – who hold mortgages over the couples’ property;

(ii)              The Trustee in Bankruptcy of one of the parties;

(iii)             Any other Company or person with the ability to affect the asset pool (a relative claiming to have a mortgage for example). 

These Orders have become necessary as a result of circumstances where the Court would like to divide up assets in a particular way, but can’t. 

A.        BANK EXAMPLE

It is extremely common for a couple to own a house together, with a home loan. 

There is often additional bank debt related to the running of the business, and that debt will almost certainly be secured against the house with a Guarantee from the Wife. 

A common property settlement is for the Husband to retain the business and the Wife to retain the house. 

It is now possible for the Court to Order the financier involved, to release one of the parties (in this case the Wife), from liability under the debt, despite the fact that the bank has absolutely no obligation otherwise, to do so. 

B.        TRUSTEE IN BANKRUPTCY EXAMPLE

If the Husband has become bankrupt, then all assets which are in his name, will automatically vest in (become temporarily owned by), the Trustee in Bankruptcy the person appointed to manage the bankrupts affairs.  It is up to the Trustee then to gather in those assets and distribute them for the benefit of his creditors.  At the same time, if the Husband and Wife are separated, she will be attempting to get a hold of her share of the assets. 

It is now open to Trustees in Bankruptcy to become involved in Family Court proceedings, and for the Family Court to make Orders against the Trustee in Bankruptcy, to attempt to secure the entitlements of the Wife.  In these circumstances, there is a balancing act between the Husband’s creditors, and the entitlements of the Wife, who, technically, may not be involved with the running of the business at all.  These Orders and the way that they work, are relatively new, and the Courts are still coming to grips with rules for when Orders should be made against these parties. 

They do so quite sparingly at this stage, and do not see these powers as a substitute for the parties organizing their own arrangements (for example selling the house to clear the debt). 

Surviving your divorce- Chapter 17: Conferences

If the matter hasn’t settled before Trial, the Court process requires a conference.  These take a few different forms but generally involve the parties coming together (you do not necessarily need to be in the same room), and your advisers making a genuine attempt to negotiate a resolution of the issues.

Over the years the Family Court has been doing this work, these conferences have yielded an amazing percentage of success.

Settlement at conferences happens in the vast majority of cases, and saves time, effort and cost.  Remember, the faster the matter is resolved the sooner you can put the issues behind you, bid your Lawyers and their invoices good bye, and get on with your life.

Conferences can take all sorts of formats, but essentially it involves a series of proposals, offers and counter offers which, statistically, often yield a resolution that each party is “equally unhappy” with.

You should make a genuine attempt at a conference to try to resolve the matter because of the cost and time benefits.  Remember, the outcomes that you want can be separated into your “must haves” and “would likes”.  Your Ex will have a list as well but the list will almost certainly be different.  Conceding a couple from his list about which you don’t really care, may well allow you to capture many or all of your must haves, and quite a few of your would likes.

Very rarely do the parties walk away from a conference (and extremely rarely from a Trial) with every single item on the wish list.  It is important for you to see this as a resolution of issues getting you what you want rather than a point scoring “get square” exercise.  Taking the wrong attitude to a conference may mean not only the cost and delay of a trial, but an outcome at Trial far worse than was available at the conference.  This scenario can often lead to a costs Order against you for all of the work required to be done by your Ex between the conference and the end of the Trial.

THIS DOES NOT MEAN THAT YOU HAVE TO LAY DOWN ON IMPORTANT ISSUES AT THE CONFERENCE.  Your adviser is required to follow your instructions, and if you feel particularly strongly about an issue, you should instruct your adviser not to concede that point.

1.         LEGAL AID CONFERENCES

The Legal Aid conference is an unusual situation which doesn’t occur in every matter.  It can still be used to your advantage to finalise a dispute. 

Where one party is funded by Legal Aid, the Legal Aid Office will often ask for a conference with all parties attending, in order to resolve the matter. 

In order to obtain Legal Aid, the parties must be financially eligible, but also have reasonable “prospects of success”.  This means, generally, that the Legal Aid Office believes that there is some merit in the argument of the party.  This conference is a chance to explore those merits, and see whether their client is being unreasonable. 

There are three (3) possible outcomes from the Legal Aid conference:-

(i)            That it settles;

(ii)          The matter doesn’t settle and Legal Aid is terminated;

(iii)         The matter doesn’t settle and Legal Aid continues. 

If you are not the Legally Aided party 

If you are funding your own action, then you may choose to refuse to attend a Legal Aid conference.  You should consider however attempting to use the conference as an opportunity to:-

(i)            Try and settle the matter;

(ii)          If it cannot be settled on your terms, attempt to show that your Ex is being unreasonable, or has poor prospects, in which case Legal Aid may be terminated for your Ex.  This will create a better environment to settle the matter on your terms. 

If you are Legally Aided

If you are Legally Aided it will be a condition of your funding, that you attend the conference.  It is important for you to see the conference as a chance to try and settle the matter, but you should also avoid appearing unreasonable.  We believe that the Legal Aid Office, observing your behaviour at the conference determines that you are the obstacle to a reasonable settlement, you may find yourself without funding. 

Strategies for Legal Aid Conferences

If you are funding yourself and you attend a Legal Aid conference, the approach to take is to be calm but firm.  Your funding is not under scrutiny, and your conduct is not in question.  You have the opportunity of walking away from the conference without any consequences, and continuing with the negotiation process. 

It is important however not to conduct the conference in an off-hand or flippant way, and to seize any genuine opportunity to settle the matter on good terms.  If your Ex is at a disadvantage, then this may be your best opportunity to secure reasonable terms of settlement.

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Surviving your divorce- Chapter 16: What if my child does not want to spend time with the other parent?

One of the most difficult situations parents face, particularly where there is a change of living arrangements, is a reluctance in children to go to those new circumstances, or a long stream of complaints and regrets when those children first return from spending time with the parent they do not live with.

It is often extremely difficult for parents to manage and cope with this, and to encourage the children to persevere. 

Having said this, if you believe that the child is in danger, or that inappropriate behaviour has occurred, it is essential that you seek advice and independent evidence quickly, and that you take steps to protect that child. 

This is a matter of balance and the seriousness of the matter is determined by the gravity of the allegations, and the quality of the evidence available.  Each matter must be looked at in its own circumstances.

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Surviving your divorce- Chapter 15: Spending time with your child

In virtually every situation, it is the court’s view that children spending time with both of their parents is beneficial.  It is important to remember that children are very perceptive, and will make up their own mind about which household they feel is more supportive, and more beneficial.  Children may after short periods of time, perceive that there is a tactical advantage in playing one household off against the other, or in attempting or threatening to move household to gain influence.  You need to see this for what it is.

If a monitoring regime or shorter periods of spending time with one parent will rectify this safety issue, then consider it.  A parent who truly is a danger, will very quickly be shown to be just that.

Having just said this, your children should never be exposed to danger, and you need to walk the line between providing that time for the children to spend with the other parent and a safe environment, and making sure your children are safe.

Exposure to a lifestyle which is different to yours, (or which is reported by your children to be different), is not necessarily cause for preventing children seeing and spending time with your Ex.

It is tempting, borne of mistrust and hurt to see arrangements relating to who the child lives with and how much time the child spends with each parent as an opportunity to “get even” with your Ex.

These on-going arguments, often over inconsequential variations, or irrelevant detail, have a deep and on-going effect on your children, whether they hear the arguments or not.

Children are particularly sensitive to this and the tension that it creates.  Further, you cannot control the way in which your Ex may release his or her version of this argument to your children.

Children will always make up their mind which parent has their interests at heart.  This is perhaps the most important battle to win; not the battle over who does the travel, or who gets to see the children first on Christmas day.

The long-term argument to be won is the battle to be the parent who did the right thing, in the eyes of the child.

Though it is difficult to maintain focus on this, a long-term drive towards any step (threat, demand, concession or compromise), which is in the interest of your child WILL PAY OFF.

It is a formal recognised fact of the Legislation, reinforced by the Courts, that, except in the most objectionable of situations, children benefit from time spent with each parent.

In order to prohibit (or even severely limit) your children spending time with the other parent, you will need to be in possession of evidence that it is not in the children’s best interest to have spend that time with them.

A starting point is that the time the children are spending with the parent they do not live with is beneficial.  If you wish to limit or prohibit the time your Ex spends with the children, you will have to carry the burden of proof.

Factors which are relevant are:-

(i)                age of the child;

(ii)              special needs (illness, particular medical care or susceptibility);

(iii)             risk to the child’s welfare;

(iv)             cost of transport;

(v)              availability of the parent whom the children do not live with to spend time with the children.

Until the advent of shared parenting, unless the child was quite young, the Court made “the usual orders”, that is, spending time with the parent they do not live with each alternate weekend, half of the School holidays, and special arrangements for approximately half of Christmas.

This was clear and unambiguous but rather inflexible.

With the advent of shared parenting, this is less clear and more flexible.

Shared parenting arrangements (week about), and even arrangements where the parents move but the children stay, are now not unheard of.

The Court is quite prepared to take a much more flexible view, provided the parents can make the arrangements work. 

Societal norms and family units have also culturally adapted to situations of multiple households and children moving about.  This is seen now as somehow less disruptive than it was 10 years ago.

In short, provided the two households are safe, and the child’s needs can be met in each of the households, there is no set “norm” for arrangements for children.

Notwithstanding this, the vast majority of families still fall into the parent with whom the child lives, and the parent with whom the child spends time with, who will get, roughly, alternate weekend access and half the School holidays.  This arrangement still works quite well.

In the absence of any danger be:-

(i)            communicative

(ii)           generous

(iii)          flexible

1.                Communication

               It is absolutely essential that you communicate the programs, plans and any changes to your Ex, with as much time as possible.  Significant tens of thousands of dollars are spent in many cases, seeking orders from the Court, which could be quite easily worked out with a little bit of communication.

               All of the time effort and anxiety (not to mention the effect on the children), which created by having to seek orders relating to who the child lives with and how much time is spent with the other parent depletes the resources of both parties and creates long on-going courses of tortured contact between the parents.  These pieces of contact can go on for decades, and be seriously debilitating.

2.                Generosity

Spending time with arrangements for very young Children

               Sadly, relationships can and do break down at times when children are very young, even infants.

               In these circumstances, the time spent with the children can often be shortened and made more frequent simply to avoid the logistic and other difficulties of having an infant moving and living in different surroundings.

               It is quite common that spending time with infants to be reduced to a period of hours on a more frequent basis, until the child gets a little older.

               Even this time spent is beneficial for all the parties concerned according to the Courts and the Parliament, and time spent even with infants will be ordered unless there is some particular reason not to do so.

3.                Flexibility

               Huge amounts of money, time, effort and anxiety every year are spent through the Courts arguing about ridiculous insignificant and ultimately futile variations to hand over and spending time with arrangements.

Inevitably, in the vast majority of cases, each party bears their own costs, depleting the resources of both households.  The side effects are, long-term damage to the prospects of getting a working relationship relating to the children, and damage to the self-esteem and well-being of the children themselves.

It is important not to feel taken-advantage-of in these circumstances, but a concession made for the benefit of your child, which is pointed out as such, will go a long way towards winning that battle to be the parent with the greatest investment in the child’s well-being.

It may not always be reciprocated, but your children will understand and this is the main game.

Having said all of these things, if your message of flexibility is being misunderstood, or you are being taken advantage of, then you may need some permanence and structure, and may be justified in requiring some formality in the arrangements and the alteration.

A child focus will always assist you to make this decision.

If there are children involved, the Court will almost always order for time to be spent with the parent whom the children do not live with.  This used to be called residence, and prior to that, access.

The Court will assume (and you should also) that the child will benefit from spending time with that parent. 

The Court may also be order that the children spend time with grandparents and other near relatives in rare circumstances. 

Spending time with arrangements will only be limited or refused if the circumstances require, for example, the child is particularly young, has special needs, the parent in question cannot cope or is not able to provide a safe environment, or there is some credible evidence of abuse by that parent.

Even in these circumstances, often the Courts will usually order that the time spent with the children is to be supervised. This is intended to be a controlled environment where the child can benefit from spending time with the parent but where there is some supervision of their activities so that there is no possibility of inappropriate behaviour.

The time children are to spend time with one parent is often inappropriately used as a weapon by parties. 

1.         COMMON STRATEGIES USED BY PARENTS

(i)                constant requests for change;

(ii)              failing to attend handovers on time or at all;

(iii)             poisoning the children using time spent with the other parent as a bargaining chip;

(iv)             unreasonable demands re travel arrangements;

(v)              moving away to make spending time with arrangements difficult.

2.         THE PROBLEM WITH THESE TACTICS

The difficulty with tactics such as these is:-

(i)                they will often land you in Court with an interim application to change the time that a parent spends with their child, or even who the child lives with, this is costly for both parties;

(ii)              they lead to a situation where the dispute never ends because the parties will often have entrenched attitudes, and once the argument begins it cannot be “switched off”;

(iii)             children are quite perceptive creatures and will often take advantage of the scenario to “play one off against the other”.  You very quickly find a situation where the children are feeding back to you information to suit their own agendas, rather than accurate information, and this not only sends the argument further out of control, it takes the issues in a direction that neither of the parents intended.

You should take a great deal of care when relying upon information reported back by children after they spend time with their parent.

Children can very quickly work out who is the cause of the anxiety between the parties and who is inflicting the most emotional damage upon them.  Children do not forget this and as they grow older your relationship with your children could be irretrievably damaged by your loss of balance and focus.  Your continued manipulation with arrangements relating to the time children spend with the other party (or that by your Ex) can mean that you (or your Ex), will have no relationship with those children once they become old enough to make up their own mind.  It is essential that you stay focussed on the benefits for the child, even in difficult circumstances where your children may not want to spend time with the parent , or where it may not suit you.

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