Father’s Day is coming up on 4 September.

We understand that it is a day that can trigger mixed emotions in different families.

On one hand, a time of celebration, joy and recognition of the contribution that our Dads and the other male role models make to our lives. But for some people it can be a time of anxiety, sadness, loss, loneliness and a range of other emotions.

In situations of separation and divorce it can also be a time of distress, sadness and possibly heightened conflict.

For some Dads, Father’s Day can be a painful reminder that they do not have their children with them, or not with them as much as they would like.

As family lawyers, we see the impact that Father’s Day (and indeed, Mother’s Day and other special occasions) can have on families that have gone through relationship breakdown. We see and understand that these days of ‘celebration’ can be distressing for some families.

There is a misconception – at least in some mainstream discourse and media – that the family law system is biased against men, especially when it comes to access to children, but this is not the case.

Since 2006, the Court has held the presumption that parents should have equal shared parental responsibility, and that it is in the best interests of the child to have a meaningful relationship with both of their parents. This means that Court sees value in both parents playing a role in making decisions about major long-term issues, including schooling and health.

However, this presumption of equal shared responsibility does not automatically entitle the parents to equal shared time with the children. This can only occur where:

• The parents agree to it; or
• The Court is satisfied that this is in the best interests of the child – that it is the most suitable arrangement.

It is worth noting that in circumstances where a child has been exposed to, or experienced family violence, the Court will make parenting orders to prevent such harm occurring, and the presumption Families seeking to make Father’s Day the best day it can be for everyone may wish to consider the following, not only in the lead-up to 4 September this year, but also for the years ahead.

1. Know your responsibilities

Under the Family Law Act 1975 (Cth) (“the Act”), the paramount consideration for the Court when making parenting orders is the “best interests of the child”. Section 60CC of the Act provides a set of factors which are considered by a Court when determining a child’s best interests. These factors include but are not limited to:

• The benefit to the child of having a meaningful relationship with both of the child’s parents
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
• Any views expressed by the child and any factors (such as maturity and understanding) that the Court may consider influences the child’s thinking
• The nature of the relationships that the child has with either and both parents and the wider family and social circles
• The extent to which each of the child’s parents has taken, or failed to take, the opportunity to, for example, participate in major and long term decisions about the child, spend time with the child and communicate with the child
• The extent to which a parent has contributed or sought to contribute (or failed to) the costs of care and wellbeing of the child
• The likely impact on the child of separation from a parent
• The capacity of either or both of the parents to provide for the child – emotionally, intellectually, physically and financially
• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
• If the child is an Aboriginal child or a Torres Strait Islander child, the right of the child to enjoy that culture (including with others who also enjoy that culture)
• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
• Any family violence involving the child or a member of the child’s family.

It is very helpful for parents to consider their actions and approach within the above framework that the Court must apply.

2. Family dispute resolution is key

It is compulsory for both parents to first attend family dispute resolution (“FDR”) when seeking Court orders for parenting arrangements, unless exceptions apply.

FDR mediators assist parents in discussing important issues and can be incredibly beneficial when planning the logistics of the parenting arrangements moving forward from separation. Some FDR mediators are also child-inclusive. This means that the child gets to voice their views and have an input in this process.

If both parents are satisfied with the outcome from FDR, a Parenting Plan can be drafted, and/or the parties can then enter into binding consent orders with the Court based on this plan. This is a desirable outcome since it avoids putting either parent and the child through an emotionally challenging court process.

We encourage all families – absent family violence or other adverse factors – to try to work together constructively to resolve parenting and other issues, with or without the help of FDR specialists.

FDR will not be a compulsory requirement in cases where there has been family violence or child abuse.

To this end, it is worth noting that there are alternatives to litigation. For example, Nicholes Family Lawyers is proud to Offer ‘Our Family in Two Homes’. This model – based on a series of workbooks (that one or both of the former partners complete) – may appeal to those clients who value above all their ability to have a constructive ongoing parenting relationship; wish to part on good terms; and are prepared to listen to and understand each other’s perspective(s). It works where families want to retain the power, control and the agenda over their family. It allows separated families to make collective decisions informing their ‘new kind of normal’.

3. Post-separation parenting courses

If suitable, a post-separation parenting course may assist parents with key information and strategies to assist in the separation process, including how to resolve differences of opinion.

Attending a post-separation parenting course may assist parents in achieving successful co-parenting and minimise emotional strain on children. Indeed, these courses typically centre around improving outcomes for children and being attentive to their needs. By facilitating this child-focused environment, parents may be able to reach better outcomes when deciding on time spent with the children for Father’s Day (or Mother’s Day as the case may be).

4. Seeking support

When going through separation and divorce, it is critical to look after your – and your children’s – physical, emotional and mental health. A good place to start in terms of support is your general practitioner. Ask your doctor how they can help you, and your family.

In summary

• Seek legal advice to help understand your responsibilities as a parent.
• Be aware that the paramount consideration under the Act with respect to children is their ‘best interests’
• Depending on the circumstances, family dispute resolution can assist parents with discussing important issues, such as who makes long term decisions for the children
• Attending a post-separation parenting course can assist with the co-parenting relationship
• Separation and divorce can be difficult for everyone involved. Seek support to maintain and promote the mental wellbeing of all members of your family.

Nicholes Family Lawyers provides tailored and sensitive assistance to families undergoing separation and divorce. To reach out, please contact our office at reception@nicholeslaw.com.au or by telephone at (03) 9670 4122.