An overriding feature of the Family Law Act in relation to children’s matters is that the court (if there are contested proceedings) must have as primary considerations:-
- The benefit to a child of having a meaningful relationship with both parents.
- A need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The majority of separating parents have a good insight into the needs of their children and are able to reach an agreement (sometimes with the help of a solicitor or mediator) about the long term living arrangements for their children.
If however, an agreement cannot be readily reached, the parties are best advised to obtain professional assistance through a solicitor so as to reach an agreement about arrangements and thereby avoid court proceedings. Frequently the arrangements that the parties had put in place for the care of children prior to separation, provide an indicator of the most appropriate arrangements following separation, although that is not always the case.
The role of a solicitor is to initially provide advice as to a client’s rights and further give guidance so as to avoid, if at all possible, court proceedings. Solicitors will usually attempt to negotiate a settlement of the issues in dispute, and will advise whether formal or informal mediation may assist. If, however, court proceedings need to be commenced it is important for parties to the litigation to receive competent and practical representation so that the process is completed as early as possible and in the most cost effective manner possible. At all times the focus must be on the best interests of the children.
Except in matters of urgency or where there is family violence, court proceedings in relation to children’s matters cannot usually be commenced unless the parties have undertaken family dispute resolution with a registered family dispute resolution practitioner, or there has at least been a genuine effort by the applicant to cause that to happen. The Court also requires that the applicant invite the other party to attend mediation and make a genuine effort to resolve the issue.
It is important, however, for each party to understand their rights and to obtain some guidance as to the court’s likely view of appropriate arrangements for the care of children, in light of their particular circumstances. That advice is best provided initially by a solicitor who will also advise and make referrals as appropriate, to organisations such as a family relationship centre, or other mediator. Arguably the best results of mediation are achieved when solicitors are involved, and the parties each have a clear understanding as to likely outcomes of the matter if litigation were to proceed.
Litigation should be avoided if at all possible. It has the effect of polarising the parties, and often the children, so that it becomes more difficult at the end of the process to maintain a satisfactory working relationship between the parties. Litigation is also expensive and involves lengthy delays, usually with no final resolution for about two years after the commencement of proceedings.
The first and most important step, however, is to obtain competent, practical and sympathetic advice from a specialist family law practitioner.