Involvement in family law proceedings can be a very stressful time for both parents and children. As the family structure takes on a new form, there can be significant conflict within families which in turn take a toll on a person’s mental health and wellbeing.
Psychologists and counsellors therefore play a unique role in supporting parties involved in family conflict. To empower these practitioners to engage in best practice, a knowledge of the family law system can be invaluable.
Reaching agreement on parenting
When parents separate, there are a variety of paths they can go down to reach agreement. If parties are successful in reaching agreement, they can formalise the agreement with consent orders or a parenting plan.
“Kitchen Table Negotiation”: This is where parents reach agreement between themselves, without the need for outside assistance.
Family Dispute Resolution: If parents can’t agree between themselves, the next option is usually family dispute resolution (FDR). Parents in dispute who want to go to Court must first attend FDR and obtain a Section 60I certificate.
Negotiation between Lawyers: When FDR proves unsuccessful, parties often instruct lawyers to negotiate on their behalf. This negotiation takes place usually through written correspondence, or sometimes through a round table conference.
Collaboration: Collaboration is a popular form of dispute resolution whereby parties and their lawyers work together in a transparent form of negotiation, often with the assistance of a collaboratively trained mental health professional.
The main difference between collaboration and mediation is that when parties commence collaboration they enter into an agreement not to litigate their matter. If the collaboration fails and parties do turn to the Court, the lawyers who represented them in the collaboration cannot act for them in the litigation.
Making a Court Application: The final option for parents who are unable to resolve their dispute is to go to Court. Both courts are very busy. In Melbourne for example, parents will probably have their matter listed for a First Interim Hearing approximately 6-8 weeks from the date of filing and they could be waiting over 12 months for a Final Hearing (Trial).
In a number of matters, Interim Orders also enable a “testing period” for arrangements so that further evidence can be gathered often by way of a family report.
Parenting Orders are made by the Court and deal with matters such as the living arrangements for a child, the time or communication the child is to have with the other party and other persons, the allocation of parental responsibility and any other aspect of a child’s care, welfare and development.
They can be made by consent of the parties or following litigation. Either way, when making parenting orders, the paramount consideration of the Court is to make arrangements which are in the best interest of the children.
In determining a child’s best interests, the Court’s primary considerations are:
- The benefit to a child of having a meaningful relationship with both parents; and
- The need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The secondary considerations are many, including:
- Any views expressed by a child, in light of the child’s maturity
- A child’s relationship with each parent and other relatives or persons
- The likely effect of any changes in the child’s circumstances
- The practical difficulty of a child spending time with and communicating with a parent
- The capacity of each parent to provide for the needs of a child
- A child’s maturity, sex, lifestyle and background (including culture and traditions)
- The attitude to a child, and to the responsibilities of parenthood, demonstrated by each parent
- Any family violence
There is a general presumption at law that it is in the best interests of a child that parents have equal shared parental responsibility for them. However, the law distinguishes between “shared parental responsibility” and “shared care” or “equal time”. If parents are in so much conflict that they are litigating over the time the child spends with them, the courts may be reluctant to order that the children spend equal time with both parents as it is generally considered that parents need to be able to successfully co-parent for shared parenting to work.
Parenting Plans are an informal means for parents to reach agreement on children’s issues. They are “an agreement in writing, made between parents, signed and dated”.
Parenting Plans differ from Court Orders as they are not enforceable by a Court. However, the Court must have regard to them when making a parenting Order if it is in the best interests of a child to do so. A parenting order is otherwise subject to a subsequent Parenting Plan entered into by the parties.
Under the Children, Youth and Families Act 2005, registered medical practitioners and some youth, social and child welfare workers are legally compelled to make a report to Child Protection if they form a belief on reasonable grounds that a child is in need of protection from physical injury.
It is important to note the identity of all reporters is protected by law and a report made in good faith does not constitute unprofessional conduct, breach of ethics, breach of the Health Services Act 1988 or the Mental Health Act 1986 and is not a breach of Privacy.
Letters and subpoenas
Psychologists, counsellors and social workers may be required to write a letter to the Court or may be issued with a subpoena to give documents or provide evidence at Court. It is important to comply with a subpoena or to file an objection within strict time limits, or the Court may issue a warrant for your arrest, and/or order you to pay any costs caused by non-compliance. A Court may also find you guilty of contempt of Court.
However, in order to be enforced, a subpoena must be personally served and provided with adequate conduct money. A person can also object to the production of documents required by a subpoena for reasons such as the documents requested are irrelevant or the terms of the subpoena are too broad. Even if documents are confidential, such as medical records, they must still be provided to the Court.