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Perfecting Parenting Plans
Substantive Law| What area(s) of law does this episode consider? | Family law, specifically parenting plans, parenting agreements and consent orders as an alternative to family court orders. Vanessa Jackson discusses the advantages of settling parenting disputes outside of court and gives tips and tricks on how to navigate parenting plans. |
| Why is this topic relevant? | Court mandated parenting orders are an expensive, lengthy and inflexible way to resolve disputes about care and responsibility for children. Parenting plans present a more effective, efficient and workable alternative to the court process and can save parents and children alike a lot of stress in what is already a very stressful time in their lives. |
| What cases or legislation are considered in this episode?
| Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)
Rice v Asplund (1979) FLC 90-725
‘…should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever-present factor in human affairs … there must be evidence of a significant change in circumstances.’ Bondelmonte v Bondelmonte 259 CLR 662
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| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | AIFS ‘Parenting arrangements after separation’ research summary October 2019 ALRC ‘Family Law for the Future – An Inquiry into the Family Law System’ final report March 2019 Joint Select Committee on Australia’s Family Law System interim report October 2020 |
| David Turner: | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Joining me today on Hearsay to talk about the ins and outs of parenting orders and parenting plans is Vanessa Jackson from Southern Waters Legal. Vanessa thanks so much for joining me today on Hearsay. |
| Vanessa Jackson: | Thank you so much for having me. |
| DT: | Now, Vanessa you’re an accredited specialist in family law, tell us a bit about your career in family law, how long have you been working in it and how did you come to practice family law? |
| VJ: 1:00 | So I have been working in family law probably for about 15 years. I have been admitted for just over that and started out practising in a suburban firm doing workers compensation and personal injury. And so, an opportunity arose to shift into the family law team in that practise and I have been working in family law ever since. Working in a couple of firms in the city and now I’m working at Southern Waters Legal at Cronulla which is a nice sea change. |
| DT:
2:00
3:00 | Absolutely, now family law can be an emotionally demanding area of law to practice in, especially when it comes to parenting matters and what we’re talking about today are parenting orders and parenting plans. I suppose it’s important to recognise at the outset that very few family law matters are resolved through parenting orders isn’t that right? TIP: In 2019, the Australian Institute of Family Studies found that only 3% of separated parents go to court to work out their parenting arrangements. While 97% of separated parents don’t go to court, 16% of them do use family dispute resolution services or lawyers to reach a parenting agreement between themselves. As we’ll discuss further later on, the matters that do end up before the court are disproportionately affected by family violence and other child safety concerns. 45% of court orders decided by a judge provide for sole parental responsibility by the mother, and 11% for sole parental responsibility by the father. In just 3% of cases before the court are orders made for no contact with one parent however. Of course, are these decisions made according to the provisions of the Family Law Act 1975 (Cth), namely section 60CA which states that the court has to put the best interests of the child first when making parenting orders. In matters involving family violence, the need for the child to be protected from harm or exposure to family violence comes before the child’s right to a meaningful relationship to both parents under section 60CC(2A). The court is empowered to make orders for a child to not see a parent as well as orders for a child to see a parent only under supervised contact. We’ll leave a link to the Australian Institute of Family Studies research summary in the show notes for this episode. |
| VJ:
| Yes, so most matters don’t find their way in court, which is good. And we find more and more people engaging in sort of the mediation process with family dispute resolution practitioners which they have to do in any event prior to commencing proceedings with obvious exceptions. And so they’re more likely to come to some sort of agreement between the two of them and are agreeable to entering into a parenting plan as opposed to court orders. |
| DT: | We’ve used those terms a couple of times now, ‘parenting order’ versus ‘parenting plan’. One is obviously an order made by the court, what’s the nature of the parenting plan? |
| VJ: 4:00 | So the nature of the parenting plan is really like a contract between parents. It identifies and sets out what arrangements or agreements parties have made in relation to arrangements concerning their children. And it also can deal with some of the warm and fuzzy stuff that court orders generally don’t include, such as what they hope to achieve in terms of their co-parenting relationship moving forward, what they want to do in terms of continuing to engage as a family unit and other you know like exchange of presents at Christmas and on special occasions. So it can deal with some of the nice, warm, fuzzy stuff that people want to put down in writing that aren’t dealt with in court orders. |
| DT:
5:00 | I suppose as a practitioner when you’re trying to espouse or convince a client of the merits of a consensual arrangement through a parenting plan, the flexibility of the scope or the parenting plan to deal with those sorts of issues that a court will never make orders about is probably one of the major reasons why they should at least attempt to resolve those issues by consent, isn’t it? |
| VJ:
| That is correct and you can reach a consent agreement and enter into court orders about those arrangements. But the benefit of a parenting plan is that it provides parties with flexibility. There can be clauses built into the parenting plan to suggest that, you know, after a certain period of time parties will go ‘back to the drawing board’ so to speak and will meet again about whether any amendments are required to that parenting plan, whether arrangements for themselves or their children have changed such that what had previously been identified as a good arrangement for the children no longer works. And they’re able to, again, enter into another parenting plan and have that flexibility to change their arrangements based on the changing needs of the children, particularly as they get older. |
| DT: 6:00 | I’m glad you mentioned that flexibility overtime that comes with parenting plans because the comparative inflexibility of orders is something I want to come back to later in our discussion. But I wonder if you could tell me about a time where you’ve seen a parenting plan that’s included the kind of arrangement between parents that just never could have appeared in orders. |
| VJ:
7:00 | So in parenting plans, as I mentioned before, you can have a ‘going back to the table’ so to speak. So more and more we’re finding that parties are reaching an agreement and they’re recognising, particularly with young children, that the arrangement may need to change in the future. So I’ve had a number of parenting plans that I’ve drafted recently where there’s been a clause that’s been added that says, you know, in 12 months’ time we’re going to go back to see the family dispute resolution practitioner to work out an increase in time potentially for dad spending with the children. Or even setting a timeline where when the two children reach whatever age it may be, we’re going to go back again and talk about what arrangements might work for them moving forward. So I’m finding that they’re more common to include. It’s difficult to include those clauses in a consent order because the purpose of consent orders is to have finality between parties. And courts, given the delay at the moment, certainly don’t want people coming back and forth again and again changing orders that have previously been made in relation to their children. |
| DT:
| For sure and we’ll definitely come back to the current delays and whether some of the more controversial proposals around the way family law matters are dealt with in the Federal Circuit Court and the Family Court are affecting any of those delays. We’ve spoken a lot about the advantages of parenting plans, are there any disadvantages to dealing with things that way? |
| VJ:
8:00
9:00 | The main disadvantage is that they’re unenforceable. So what that means is they work really, really well when everyone’s on the same page. They don’t work so well when there’s a change in attitude potentially for one of the parties, where there has been an agreed arrangement that has been reflected in a parenting plan that sets out what time one of the parties is going to spend with the children and then the other party unilaterally ceases that time. There’s no enforcement so the party who had the benefit of a parenting plan that said for example that he would spend each alternate weekend with the children is not able to go to court and enforce that parenting plan as if it was court orders. What that means is they effectively have to go back to the drawing board and go through a mediation process. If it’s been more than 12 months since they’ve attended upon a family dispute resolution practitioner or potentially attended upon that person for the first time if the parenting plan was something that had been reached directly with the former partner, and then bring an application to court seeking orders to spend time with their children. The problem with that as we’ll, I’m sure, deal with later is that there is a delay. So it might be a situation where a party was spending regular time, might have even been spending a week-about arrangement with their children. The other party unilaterally stops that arrangement. And there might be a range of reasons why that occurred but then it means that they are no longer spending time with their children and have to wait for the delay of the court to have the matter be determined. |
| DT: | I’ve heard a lot of those unilateral departures from agreed arrangements can happen around holiday time, around Christmas or the New Year break for example, has that been your experience? |
| VJ:
| Yes and my experience more when kids get a bit older. One of the children might have entered their teenage years and be voicing an opinion that they maybe don’t want to spend as much time with the other party. Maybe they’ve had a, you know, a disagreement with the other parent and don’t want to go and spend time with them because of that disagreement. And it makes it much easier for the other parent to effectively say “well you don’t have to go, there’s nothing requiring you to go” and therefore that time then just ceases. |
| DT: 10:00 | Are there situations where as a family law practitioner you would look at a relationship between two separated parties and say well “I’m not going to pursue a parenting plan in this case, I think it’s just appropriate that parenting orders are made”? |
| VJ:
| Yes there would be. They would mainly be in cases where there’s been a difficulty from the outset in one of the parties facilitating an arrangement with the other party. If there’s a reluctance to encourage or get in place some kind of arrangement for that time to occur, then it is likely that that reluctance will continue in the foreseeable future and the only way of building any certainty in relation to those arrangements is to have court orders made. |
| DT: | I suppose what you’re really looking for to make sure a parenting plan, remembering it’s unenforceable, is going to work in the future is a cooperative approach, a collaborative approach, to co-parenting. |
| VJ: 11:00
| That’s correct and in saying that you’ll find that most people make those arrangements without having to come and see a lawyer. More and more it might be that they write to us or contact us and say “look we’ve come to an agreement, you know, we want to reflect it somehow and then we’ll obviously have a look at whether it’s been better to put it in this parenting plan or whether to put it in as court orders.” But more and more I find that people enter into parenting plans with the assistance of a family dispute resolution practitioner and quite often that is drafted with the assistance of the family dispute resolution practitioner. So they’re coming to us after a parenting plan has been entered into, it might’ve been in place for some time, it might be that they’re looking to either change those arrangements or they’re looking to make court orders reflecting what the parenting plan was to provide some certainty that those arrangements will continue in the future. |
| DT: | I suppose one of those other situations where an order might be more appropriate over a plan is where there’s been family violence or some other situation that makes it impossible for the parties to cooperate. |
| VJ: 12:00
13:00 | Yes that is the case. And if there is circumstances of family violence for example it’s likely that the family dispute resolution practitioner will say that the matter is not appropriate for mediation and therefore the only way to proceed in that respect is to have a section 60I certificate issued saying that the matter isn’t appropriate for mediation and then for one of the parties to go to court seeking court orders in relation to parenting matters. TIP: Vanessa’s just mentioned a section 60I certificate. Section 60I of the Family Law Act 1975 requires all persons in a parenting dispute to have made a genuine effort to resolve the dispute by family dispute resolution before applying to the court for a parenting order. The section is a mechanism of the Act which ensures that all family law matters which may be dealt with by an order under Part 7 concerning children, are serious enough for the court’s intervention. A section 60I certificate has to be issued by the FDR practitioner in order to be able to apply for a parenting order. A section 60I certificate might be issued by an FDR practitioner where:
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| DT:
| Now turning to the advantages and disadvantages of the parenting order, one of the advantages we’ve covered off on is of course that it’s enforceable although I imagine there’s some practical difficulties with enforcement of parenting orders, aren’t there? |
| VJ: 14:00 | There certainly are, the main one is that you can certainly have orders which set out time that one party might spend with their children for example, but you can’t actually force a party to spend time with their children. So it might be that that one party has an order saying that every second weekend the children might be with their father or they might be with their mother, but ultimately it’s up to that party as to whether they seek to spend that time pursuant to the orders. A court can’t force someone to spend time with their children. So even though someone might want to put in place certainty around routine about arrangements and sees that it is in the best interests of the children that they have a relationship with the other party, the court can’t enforce someone to spend that time set out for in orders. |
| DT:
| I suppose if there is non-compliance with orders in the other direction where someone is trying to deprive the other party of their time with their children, especially again over a Christmas break for example, I suppose the only practical means of enforcing those orders are to make an urgent application to the court probably at a very inconvenient time. |
| VJ: 15:00 | That’s certainly the case and it would be by filing an application for contravention. The difficulty again with those is that there’s delay. So a party might be breaching orders for a considerable period of time before that matter comes before the court. Which means again there’s a considerable period of time that a person is potentially not spending time with their children. So that’s probably the only main way that orders can be enforced, but there are certain difficulties with that as well. And another factor is the cost; filing applications in court aren’t inexpensive and that’s a cost that someone might need to bear and ultimately they might not get the outcome that they potentially want |
| DT:
16:00
17:00 | Now one of the other disadvantages of a parenting order that we’ve hinted at earlier in the episode is that they’re pretty inflexible. Whereas you can build in some flexibility, some review dates, into a parenting plan, there’s really no way to change parenting orders unless there’s a significant and substantial change in circumstances as a result of the ruling in Rice v Asplund (1979) FLC 90-725. TIP: Rice v Asplund (1979) FLC 90-725 is the main authority that governs cases involving an application for new parenting orders after the Court has already made made them. The Full Court of the Family Court allowed the mother’s appeal from a previous final order made in the matter which held that the child live with the father, as they determined that the circumstances of the arrangement had changed dramatically enough since the date of the original final order to warrant allowing the mother’s appeal. The case stands for the rule that final orders made in relation to parenting matters in court should not be reviewed unless significant change has occurred in the circumstances since the order was made. Evatt CJ made the comment that the court: “…should not lightly entertain an application…to do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.” When considering an application for variation, the court has to balance two factors: 1) protecting the child from the effects on ongoing litigation, and on the other hand 2) where circumstances have changed that may have affected the child’s best interests, what order is now in the child’s best interests? The onus of proof rests on the applicant who seeks the variation to satisfy the court that there has been a substantial change in circumstances which requires new orders. What are the sorts of circumstantial changes that might justify a new parenting order? |
| VJ:
18:00 | There are various ones and I guess it all depends on the facts of the case. Finding that children are getting older isn’t necessarily a basis on which parties can come back to the drawing board, so to speak, and see that further orders be made. But the main ones are if there’s effectively been a change in circumstances like one party wants to relocate whether it be interstate or internationally. Or even if they want to change arrangements to move out of the area that they might have been residing at such that the current consent orders or court orders are unenforceable or unworkable. That’s probably the main one. The other ones might be if for example the children, there’s been mental health issues that have arisen, there’s been family violence that has arisen since the orders were made. If the children are having difficulty in spending time with the other party such that it’s no longer in the best interests of the children that those orders would therefore apply. But certainly a child getting older or their circumstances changing in that regard wouldn’t necessarily be enough to have the matter reconsidered by the court. |
| DT: | Now when a matter actually comes before the court for parenting orders it’s quite a complex question to put before the court, isn’t it? And it’s quite a complex process by which that question is determined. Can you give me a bit of an outline of the process of seeking and having a parenting order made? |
| VJ:
19:00
20:00
21:00
22:00 | So it would be by filing an initiating application and as I said earlier you will need to have obtained a section 60I certificate from a family dispute resolution practitioner to enable that application to be made. There are obvious exceptions to that, so if there’s urgency, there’s family violence, mental health issues that impact on the ability of the parties to engage in that process. But a party would generally seek interim and final orders in an initiating application. That matter would come before the court and it would go through a fairly lengthy process before it actually came before a judge for a final determination. At a final hearing, a court would then consider the paramount consideration which is what’s in the best interest of the child. And there’s a whole heap of factors that a court would then consider in making that determination which you’ll find in section 60CC of the Act. TIP: Section 60CC of the Family Law Act 1975 outlines the factors that the court considers in determining the outcome of an application for care orders. The primary considerations are: the ‘benefit to the child of having a meaningful relationship with both parents’ (as above we’ve discussed that’s subsection 2(a)) and ‘the need to protect the child from physical or psychological harm’ (subsection 2(b)). Subsection 2A clarifies that the court is to give greater weight to the latter consideration; to protect the child. Section 60CC(3) outlines additional considerations the courts can draw on in making their judgement, including:
Section 60CC(6) makes specific provision for an Aboriginal or Torres Strait Islander child’s right to enjoy their culture, including the right to:
Section 60CC(6) is a unique provision that requires the court to be satisfied that the parties will ensure there is a transmission of cultural knowledge and practices to the child. As there are over 400 distinct Aboriginal Australian groups in Australia, cases involving consideration under these sections will require the practitioner to present evidence on the specific Indigenous community’s spirituality, land, language, laws and beliefs, which can contribute significantly to the outcome of the case. But they might be, you know, the nature of the child’s relationship with each of the parties, the nature of their relationship with other important people such as step siblings or siblings or extended family members. They’ll look at any wishes that children might be expressing and the age and developmental needs of a child in terms of how their wishes have been expressed. And they’ll look at, you know, the party’s ability to encourage and foster a relationship between one party and the other. So there’s a whole range of factors that a court takes into account, some might be relevant to the facts of the case and some might be irrelevant but they certainly need to be addressed by the judge at that final hearing stage if it gets to that step. |
| DT:
23:00
24:00
25:00 | Now there’s a presumption in applications for parenting orders isn’t there? About equal shared parental responsibility. But I think that’s a presumption that’s often misunderstood, not just by the public but perhaps by the profession as well, in equating responsibility with time. And certainly the Joint Select Committee on Australia’s Family Law System in 2019 reported that there were concerns among the family law profession that the public were entering into consensual arrangements or parenting plans on the misconceived basis that if they went to court there would be a presumption of equal time. TIP: The Joint Select Committee on Australia’s Family Law System was appointed in September 2019 with the final reporting date being 30 June 2021, this year. The committee’s interim report published in October 2020, noted that witnesses and submitters were concerned about the ‘consistent confusion and misapprehension around the presumption of equal shared parental responsibility.’ The confusion arises from a rebuttable presumption under section 61DA of equal shared parental responsibility for children created by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The interim report refers to a 2010 report by Monash University, the University of South Australia and James Cook University which was commissioned by the Attorney-General’s department. That report said that:: Separating parents have believed that equal shared parental responsibility meant that they were entitled to equal time, that is, 50–50 shared care arrangements for their children…[M]any people continue to misunderstand the 2006 provisions as creating a right to equal time, or a presumption favouring equal time. The Australian Law Reform Commission has previously suggested that section 61DA should be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues.’ Liz Snell, Law Reform and Policy Co-ordinator at the Women’s Legal Service New South Wales, spoke about the some of the adverse precipitating effects of the misunderstanding, saying that: Women negotiating agreements without specialist legal advice often agree to unsafe parenting arrangements for their children and themselves because they believe that the presumption of equal-share parental responsibility requires them to do so, even when in circumstances of family violence. The joint committee’s and the ALRC’s reports are important sources highlighting the many areas of reform needed to adequately protect families and children and to ensure Australia’s family law system is effective in helping ‘separated families work through the legal and personal issues that arise when couples separate.’ I’m now going to go back and ask Vanessa to explain the difference between equal shared time and equal shared responsibility, and we’ll leave a link to both the Joint Committee report and the ALRC report in the show notes. Can you tell me a bit about that confusion between responsibility and time? What the difference between those two things is? |
| VJ: 26:00
27:00 | So, responsibility is a presumption that both parties are jointly responsible for making decisions about long term matters in relation to their children. And that’s things such as, you know, what school they might attend, what religious upbringing they might have, any major health issues that might arise they might need a joint decision about. So there is a presumption that parents have an equal responsibility to make those decisions jointly. That differs from parties wanting to spend equal time with a child and equal time is certainly not an arrangement automatically in play and it does depend on the circumstances of the case as to whether an equal time arrangement is in the best interests of a child. It’s very difficult to set aside that presumption of joint parental responsibility and there’d have to be certain facts that would warrant that decision being in the best interests of a child. Even if a child is only spending limited time with a party, a court still finds that it is in the best interest of the child that both parents are equally responsible for making important decisions in their life. |
| DT:
| And if parents can’t agree on those decisions, how practically is that responsibility exercised? |
| VJ:
28:00 | On a practical level, you’d find that some decisions are automatically made because of where the child primarily lives. So for example on a practical level if the children are living with their mother for example and the mother wants them to go to the local primary school that’s in her area and the father who might live 45 minutes away wants the children to go to school near him then on a practical level, that won’t occur because the children primarily live with the mother and she’s primarily responsible for facilitating their attendance at school. But again, if parties can’t agree about those issues then it’s an application to court and a judge makes a decision as to, for example, what school a child might attend. |
| DT:
| I suppose that raises a further disadvantage of parenting orders, in that where it’s unlikely that the parents are going to be able to agree and I suppose recognising I think that only about 3% of parenting arrangements are made by court order, we’re already dealing with a minority of particularly disagreeable ex-partners I suppose. It’s likely going to be the case that the court is making decisions about what’s in the best interests of children as far as their upbringing or their schooling or their health in circumstances where really it’s the parents who are best placed to make those decisions. |
| VJ:
29:00
30:00 | That’s correct and you find that courts have a responsibility to, as I said before, make a decision that’s based on the best interest of the child. But the court from a practical level other than reading what parties put in affidavits or from documents produced under subpoena, don’t know a huge amount about your child or children or about your family dynamics or about decisions or discussions that you might have had during the course of your marriage about how best to bring up your children. And so sometimes orders might be made by a judge that neither party really wants and that neither party thought would work for them as a family unit post separation. So for example, I recall a matter which went to final hearing, both parties put on extensive affidavit material, incurred expensive costs in relation to the orders that they sought in relation to the time that each of them would spend with the children. And ultimately orders were made by the court that neither the father sought nor the mother sought. And orders which, having regard to their family unit and how it worked and adopted in terms of each of the parties work commitments and the children’s extracurricular activities and the like, didn’t work at all. And unfortunately unless they came to some other agreement post the making of those orders both parties were stuck with those orders. |
| DT:
| Do you find that in matters like that where an order is made that’s probably not what either party envisaged, that’s actually the catalyst for a parenting plan or some other consensual arrangement being made? |
| VJ:
| Potentially because, particularly, orders are made when the children are quite young. So parties can only crystal ball gaze to a certain extent and as lawyers we try to build in arrangements of an increasing time for example as children get older, as they start school, as school holidays come into play. But the reality is if orders are made when children are two or three, it might be that when they’re six or seven, orders that have been made about the time that they would spend with one party or another just might not work. Having regard to what each of the parties work commitments are like, having regard to what that child’s needs are and having regard to what other activities are happening in everyone’s life at that time. |
| DT: 31:00 | Just returning to the idea of equal parental responsibility versus equal time with the child, is it the case that the court has to consider equal time as an outcome even if there’s not a presumption in response to it? |
| VJ:
| The court does need to consider equal time and whether it is appropriate in the circumstances of the case that they’re dealing with. It’s one of the factors that they consider as part of consideration of what’s in the best interest of the child and the factors are in section 60CC. It’s something that is considered but it is not something that is automatically made because there is no presumption for it to be there. |
| DT:
32:00 | I suppose one of the concerns, and this is again going back to the joint Select Committee report in 2019, one of the concerns that’s been expressed by some family law practitioners is that the presumption of equal parenting responsibility is probably an appropriate one in the majority of cases. And the requirement to consider equal time is probably a good consideration in the majority of cases, but it’s really not the majority of cases that are actually the subject of parenting orders; it’s that 3% that weren’t able to be dealt with under a parenting plan. Do you find that there’s a disjunct, in your practice, between those presumptions and whether there’s a presumption for it or not that consideration of the option of equal time and the kinds of matters that are actually running to a final hearing? |
| VJ:
33:00
34:00 | Yeah so, the matters that come to a final hearing, particularly in parenting matters, are the complex ones. So they’re the ones where there might be family violence issues, there might be mental health issues on the part of one of the parties or both, there might be drug and alcohol issues, there might be difficulties in terms of the child might have health issues, and so those are the matters that generally run to the final hearing these days. TIP: As Vanessa just mentioned, these days the family law matters that are heard in court are often those involving special medical procedures, international relocation, mental health or drug abuse issues, a child welfare agency or allegations of sexual or serious physical abuse of a child. These are known as Magellan cases. The term Magellan is used to refer to the ‘integrated case-management system’ used by the Family Court of Australia. The Magellan system’s purpose is to fast-track recognised cases of serious child abuse to finalise parenting cases as efficiently as possible, usually within 6 months. In each Magellan case an independent children’s lawyer is appointed who represents the best interests of the child. It is very unlikely that a court would be dealing with the parenting matter on a final basis which was merely about an argument as to how many nights one party spent with the child. Those kinds of cases are very very rarely run in court at present, and that’s mainly because a) the delay, and b) the cost in terms of what is actually in dispute between parties. And you’ll find that, given those issues, more and more parties if it is just a dispute about how many nights one party is spending with the child against the other, can usually reach some agreement about those matters moving forward. So it’s certainly the matters that come before the court for final hearing and that require judicial determination are usually those ones where sometimes the presumption of joint parental responsibility, while it is considered, would not necessarily be applied. And certainly arrangements about a shared care week about arrangements are ones that generally not appropriate for the children given the circumstances before the court. |
| DT: 35:00 | We’ve made reference to the delays in the family law system at the moment in obtaining a final order, what are those delays like at the moment in your experience? |
| VJ:
| The delays are fairly significant. Even delays for waiting for an interim hearing are significant. So you might be waiting, you know, six months to have your matter come before the court on an interim basis; it might even be longer. In terms of having a final hearing you may be waiting two to three years to come before the court for the final hearing which is a long time for a family to be in limbo. It’s a long time for a child to be in limbo about what arrangements are going to be in place about how often they’re going to spend time with each of their parents. So that alone is reason enough for parties to come to the table and try and reach an agreement as to what arrangements might be best with their children moving forward. And that might be that they come to an agreement about a parenting plan or it might be that they ultimately come to an agreement and enter into consent orders about parenting arrangements. |
| DT: 36:00 | Does that delay create a problem in the evidence that you can rely on at a final hearing about what’s in the best interest of the child? I’m thinking about a situation where as a consequence of the delay, evidence about the development or the developmental needs of the child, for example, might really be stale. Especially if you’re dealing with very young children who’ve aged two or three years since the issue was first raised. |
| VJ:
37:00 | It can and I suppose how that impacts on a case is going to be dependent upon the trial judge and how they decide to run their docket. So for example some trial judges might make orders for all the parties’ material to be filed prior to a call over date and at a call over date is when you –– if everyone is ready, you’d anticipate getting a final hearing. While other judges prefer to sort of allocate the matter for a final hearing and then make directions for preparation of trial affidavits and the like to build into that trial date. So there is certainly a risk that if you’ve filed your affidavit, it’s too early so to speak and you’re not granted leave to file updating affidavits that some of the evidence before the court may well be stale. Particularly if there’s been a family report or an expert report that’s being prepared and that might have been prepared and released to the parties some 12 months prior to the matter coming before the final hearing. So there is a risk that some of that material may well not be as accurate coming from before the court for a final hearing. |
| DT:
38:00 | We’ve been talking about some of the public perceptions of parenting orders that are made, I think certainly there’s a public concern about delays in reaching a final hearing but there’s also a concern, certainly from a minority of commentators, about the kinds of parenting orders that are made and that they prefer one parent over another or that they don’t allow one parent adequate time or responsibility for their child. I think I’m specifically talking here about the criticism that fathers are not given sufficient time in parenting orders with their children. Is that criticism one that you think is borne out from your experience? |
| VJ:
39:00
| Potentially, but again I think a lot of it builds in some respects with the delay situation. So if there’s been a separation and the children have been primarily living with the mother and that might have just come because of circumstance where the mum might be primary responsible for their children’s care particularly their of a young age where the mum might already be the stay at home parent. And the father may move out of the home for example. What that means is if the matter takes some time to come before the court, then the children have been in a stable routine in terms of their living arrangements and it’s difficult potentially for a court to find that a significant change in those arrangements is in the best interests of the children. So if there’s been an arrangement in place for some considerable period, for example that the father might be spending you know three or four nights a fortnight maybe five nights a fortnight and the children are coping with that arrangement, the arrangement’s working well, there’s stability and routine, it would be difficult for a court to find that an automatic change for example to a week about arrangement is necessarily in the best interest of the child two or three years down the track when it comes to deal with the matter on a final basis. |
| DT:
40:00
41:00 | It’s interesting how that delay itself becomes feedback into what’s in the best interest of the child and how that proceeding should actually be determined. I don’t know that you see very many areas of the law where the pendency of the proceeding is itself a factor in the determination of it. Certainly statistical evidence doesn’t bear out the criticism that fathers are getting inadequate time under court orders. I think certainly arrangements where there’s no contact with fathers are less common in court orders compared to the separated population. Generally arrangements where children spend the majority of the time with their father are more common in court orders compared to the separated population generally. So it doesn’t really bear out from statistics, but it is interesting to see how that delay itself impacts the determination of the case. TIP: As were discussing before, according to the Australian Institute of Family Studies, court ordered arrangements are less likely to involve no contact between children and their father: only 3% of court orders, compared to 9% of general separated population. Arrangements where children spend most of their time with their father are more common in orders where litigation occurs (10–19%) than in the separated population generally (2%). As stated previously, the presumption of equal shared parental responsibility can be rebutted in situations involving family violence, which is more likely to result in the mother having a greater degree of parental responsibility. This is because while men and women may both experience domestic violence and abuse, women are significantly more likely to experience repeated and severe forms of psychological, physical, emotional or sexual abuse or violence resulting in injury or death. Now as we know, only 3% of family separation matters are actually heard by the courts, with the remaining 97% being decided by agreement between the parties themselves – so where does this misconception really come from? |
| VJ:
42:00 | And everyone has their own perception of their own circumstance and clients say “I have friends who’ve been in that situation” and everyone likes to compare war stories so to speak about what orders they’ve got, and how they were perceived to be treated unfairly in terms of orders that were ultimately made. But I don’t think that there is a particular bias between one party against the other, I think a court determines the matter based on the circumstances that come before it. But as we’ve sort of highlighted the matters that are caught within a final hearing are a very small part of the population and tend to be those matters where there are at risk issues that require a finding and it might be a finding against one party against the other. |
| DT:
| That must be a really difficult aspect of your job, managing the stories or war stories or misinformation that your clients are hearing, you know, from people who have had similar experiences or people who had not very similar experiences with the family law process. How do you manage that aspect of your role? Kind of giving that accurate information about what the client can expect in the face of all of this misinformation if you like? |
| VJ: 43:00 | I just think it’s important to be upfront with your client about the reality of their case, about the reality of what kind of arrangements a court is going to put in place in terms of the best interest of the child or children. The reality of the delay, the reality of the cost of a proceeding to contested court proceeding where the outcome is uncertain. Judges have a lot of discretion and yes, they have to work within a framework that’s set out for them in the Family Law Act, but you might have two judges that work within the same framework but get two different outcomes. So the benefit of parties reaching an agreement, and it might be that they enter into a parenting plan or it might be that they enter into some court orders by consent, is that the outcome is known. They might not necessarily be 100% happy with the outcome and you find that the goal of mediation is that neither party is happy with the outcome. |
| DT: | That’s the old saying isn’t it, that a good mediation’s one where both parties walk away unhappy. |
| VJ: 44:00 | That’s correct, but at least the outcome is known. There’s certainty and you know what’s going to happen in terms of your arrangements with spending time with the children moving forward and the children are certain of those arrangements. I haven’t personally gone through court proceedings which I’m very happy about. We see the impact of those court proceedings on our clients, they’re emotionally draining and parties generally aren’t able to move on from their separation and from the breakdown of their family unit whilst court proceedings are on foot. So if it takes two, three years for those proceedings to come to fruition that’s a long time for people and children to be in a state of limbo. So there are definite benefits in parties reaching an agreement about what arrangements are going to work for them, their children and them as a family unit moving forward. |
| DT:
45:00 | It sounds like whenever you can it’s a good idea to arrange a parenting plan and avoid the delay, the cost and the uncertainty associated with seeking parenting orders. When you’re advising your clients about coming up with a parenting plan what are some of the factors that you tell them to consider or include in that plan? |
| VJ:
46:00 | So a parenting plan is similar in terms of court orders in that it does address the basic details about what kind of time each of the parties are going to spend with their children, but it also is able to address other factors. Particularly, for example, what arrangements are going to be in place for special occasions, will one party ensure that they have a gift for the children to give the other party on Christmas and birthdays, Father’s Day, Mother’s day. It could set out what communication the parties are going to facilitate with their children but also their children having with their extended family members. You can talk about how parties are going to co-parent moving forward. So it certainly deals with all the basic information or basic stuff so to speak about “time with”, and you know, making joint arrangements for the decisions for the children, but it can also deal with some of the other stuff as well. But people certainly don’t have to enter into a parenting plan they can also enter into consent orders by agreement as well. Again because some people like the certainty of knowing that those arrangements are locked in place so to speak and that they don’t have to go back to the drawing table every 12 months or 18 months to revisit arrangements that have been agreed. |
| DT:
| That middle ground, that, orders made by consent, I imagine that’s kind of a specific situation where you do need the certainty of an enforceable order but you’re still on terms where you’re capable of negotiating. What is the kind of situation where you would identify, “okay, this is the right sort of matter for a consent order”? |
| VJ: 47:00
48:00
49:00 | We find that parenting consent orders sometimes go hand in hand with property orders. So if parties come and they’ve reached an agreement about their financial matters then the next step I guess in the process is well “while we’re here do we tie up everything in consent orders concerning parenting arrangements as well?” Even though they have been able to reach an amicable agreement, there’s still not a 100% trustworthy comfortable relationship between them and so some parties want the certainty of parenting orders to ensure that there is certainty about what time they’ll spend with their children and they don’t have to come back to court seeking that time if a parenting plan falls over. Parenting plans also work particularly well for parties who have older children. So if you have children who are 13, 14, 15, court orders aren’t necessarily going to work with them because you find that children generally at that age tend to “walk with their feet” so to speak. They generally want to spend more time with their friends than their parents over weekend periods. So a parenting plan gives that flexibility so that children of that age aren’t locked into court orders which in 12 months’ time may be null and void anyway because the child of its own volition decides that they want to spend more time or less time with the other party. TIP: Speaking of teenage children in parenting courts orders, the case of Bondelmonte v Bondelmonte 259 CLR 662 is an example that courts will not make orders based solely on even an older child’s own wishes. In that case, the father took his two teenage sons aged 16 and 14 on a “holiday” to New York, leaving their mother in Australia. However, the father decided that they were going to stay in the United States indefinitely, which caused the mother to seek urgent orders from the family court requiring the two boys to return to Australia. The trial judge granted the orders in favour of the mother, despite both the two teenage sons expressing their wishes to stay in the U.S with their father. The father appealed the decision on the basis that the court did not give proper consideration to the boys’ views, but the High Court dismissed the appeal and found that the trial judge had in fact considered the boys’ views and had decided to give greater weight to the long-term implication of the boys’ separation from their mother and their sister here in Australia. The case supports the rule that the court will make orders in the best interests of the child and that while the child’s own views may be considered and taken into account, they are but one of many factors. |
| DT: | Do you find that with the parenting plans that do involve all the children it’s worthwhile involving them in the process of agreeing that plan? |
| VJ: | I think that comes out one way or another anyway. So, I don’t think children should be involved in decisions about what time they spend with the other party per say in terms of everyone coming around the meeting table so to speak to reach agreement. |
| DT: | It’s an awful lot of pressure to put on a child isn’t it? |
| VJ:
50:00 | It is an awful lot of pressure. But you find that their wishes tend to bear out anyway because they do get to an age where they express wishes, they might be expressing it to one party or another or they might be expressing it to a school counsellor or another counselling service that might be attending upon. So I still think it’s important that even with a child of that age that they aren’t involved in the process per say but their wishes can be reflected in whatever agreement the parties ultimately make. |
| DT:
| I want to finish on a high note today and talk about a real success that you might have had with a parenting plan, a situation where you’ve seen a client come up with a really unique parenting plan that worked for them and were able to reach that result really cooperatively. Can you tell me about a time like that? |
| VJ:
51:00
52:00 | I’ve seen a lot of people come up with parenting plans but I have recently seen one where it came down to a lot of negotiations between the parties. So there was a varying number of parenting plans that passed back from one page to the next. The father was self-represented, we were assisting the mother on the side so not necessarily engaged in the dialogue with the father because sometimes arrangements are better placed to work out if parties can talk directly to themselves without a solicitor becoming involved in that process unless it’s required. But they were able to come to an agreement in terms of a shift in terms of the standard school holiday arrangements which is generally one party spends half school holiday arrangements with the other, you know, so they’re sort of equally shared, so to speak. But they were able to come to an arrangement in terms of the school holiday periods so that it worked well with what was happening during the course of their marriage. So one party, being the mother, was spending the majority of time with the children during the school holiday period but the father was taking on some additional time over the night periods. So that the mother was still able to care for the children during the day as she had been, but the father was able to spend that extra time over a night when he was available to, having regard to his work commitments. So the benefit of that is that people can come to whatever arrangement they know is going to work for both of them and can make it work for their family post their separation. |
| DT:
| In those situations where you have a parenting plan in place and then ultimately there’s a default under that plan or someone’s not following it and orders are sought, although it’s not binding, can the court have regard to that plan? Is it relevant in evidence? How does it play into the seeking of parenting orders in the future? |
| VJ:
53:00
| It is relevant and the court does have regard to a parenting plan that might have been entered into between the parties prior to coming to court. So whilst a court won’t enforce it in the sense that the court won’t say “well here’s a parenting plan, this is what’s been agreed so I’m going to enforce those orders” as if they’re a court order, it does have regard to what arrangements parties thought were appropriate for the children at the time that parenting plan was entered into. It’s also a good source of evidence in some respect because if a parenting plan identifies and sets out what time one party might be spending with a child and that parenting plan might be in place for 12 months, 18 months, two years, it’s good evidence that supports what time a party has been spending with a child over the past two year period. So it would be “here’s the parenting plan, this is what we adhered to in the past two years” or whatever period it was and now “that arrangement has stopped and this is the arrangement that I want”. A lot of people that come before the court who have had a parenting plan really just want the same arrangements that they already agreed to in the parenting plan but obviously need to seek it by way of a court order, given that it’s not been complied with. |
| DT: 54:00 | Vanessa we’ve talked about the advantages and disadvantages of both parenting orders and parenting plans, it sounds like just as marriages and relationships are infinitely unique and complex as are separations and as are the circumstances in which you might seek either a parenting order or a parenting plan. But it sounds like whenever it’s possible a parenting plan is a great idea and hopefully our listeners who practice family law or have a bit of an exposure to it have got some great tips on how to guide a client towards a parenting plan. So Vanessa, thanks very much for joining us today on Hearsay. |
| VJ: | Thanks so much for having me.
|
| DT:
55:00
| You’ve been listening to Hearsay The Legal Podcast, I’d like to thank my guest today Vanessa Jackson from Southern Waters Legal for coming on the show. Now, if you’d like to listen to some more family law related content, listen to our interview with Leona Bennet and Shelby Timmins about the collaborative law approach to family law disputes. Or, for something a little different, listen to our interview with Adeline Schiralli about elder law and the property law aspects of retirement planning. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is, as you know, self-assessed, but we suggest this episode constitutes a substantive law point. If you’ve claimed five CPD points for audio content already this CPD year you might need to access our multimedia content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points on our platform. The Hearsay team is Kirti Kumar, Araceli Robledo, Zahra Wilson, Sadhir Shiraj and me, David Turner. Nicola Cosgrove is our executive producer and keeps the Hearsay train on the rails. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions, making complex simple. You can find all of our episodes as well as summary papers, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening. |
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