The Questions Every Parent Should Ask Themselves Before Mediation

Preparing for family mediation can sometimes be a daunting task. What you are going through is tough and we understand that sometimes there is stress and heightened emotions which can make it difficult to think clearly.

As mediators, we take on the role of facilitating the conversation between you, the parents. You are the best people to decide on the future of your children and our role is to help the conversation take place. Mediators are there to help that process in a way that is neutral and impartial. We don’t take sides and we can’t advocate on your behalf.

What helps the mediation process is if you are putting the children first in parenting decisions. It can be hard to separate your own needs from those of the children, so I’ve prepared some questions to keep the kids in mind.

For the purpose of this exercise, I will use a case study of Sally and Rob who have two girls who are 8 and 10. Sally has been offered a new job and she is has asked for mediation to formalise a parenting plan. Rob has been unable to understand why they can’t continue with the flexible agreement they have. He works shift work and needs flexibility.

1. What outcome do I want from this, and why? 

Sally wants a parenting routine which has set days to accommodate her new job. This is so she can earn some extra income to support herself and the children.

Sally has been finding it stressful that she never knows when Rob will have the children in advance. She will not be able to accept the new job if this can’t be formalised.

Rob doesn’t want things to change. His employer has refused set working hours in the past and he will risk losing his job. This will naturally impact him, and therefore his capacity to pay child support.

Being able to explain or articulate ‘why’ you hold the position you do will help each of you, and the mediator, to understand.

2. Am I being child focused and if so, how? 

Sally is trying to provide a better, more stable financial future for she and the children.

Before the children were born, the couple had decided that Sally would be a stay at home Mum, while Rob worked to provide for the family. They made this decision based on what they felt was best for the kids. Rob still believes this is what is best.

Sally’s desire to work is child-focused when viewed in isolation, however, their previous decisions were also made with the children in mind. Working out what’s best for the children, now there is a new family structure, is the challenge for the couple to work through in mediation. Being child focused can mean many different things.

3. What will the impact on the other parent be?

When Sally thinks about Rob’s employment, she understands that his shift work presents the main conflict. Rob has always been able to work and have the freedom to see the kids whenever he has days off. However, this is no longer going to work as Sally’s work hours will be set.

Sally feels like it’s time for her, and while she understands this will impact Rob, she feels she is entitled to work and wants to take up this opportunity. Sally wants Rob to understand this isn’t just about him.

Rob is concerned that he won’t get to see the children as often, and he feels this isn’t best for the kids. He is distressed at this thought as he misses them living with him full time and it’s already very difficult for him. He can understand Sally wants to work but he doesn’t agree this is best. Rob wants Sally to understand this isn’t just about her.

Considering the other parent can be a challenge because it requires you to take a bigger picture perspective. Your mediator doesn’t expect you to be an expert at this. However, when both parents feel heard, you are more likely to reach an agreement. Your children want both of you to be stable and happy. So with this in mind, being considerate of the other parent is being child-focused.

4. What will the impact on the children be? 

Sally is worried about their financial security and so although she realises there will be some disruptions, she considers this to be most important.

Rob is concerned that he will not have as much time with the children and that ultimately this is not in their best interests. He feels Sally should get a job that can work around his hours until the children are much older.

Both parents agree that the children love spending time with each of them and Sally knows they will be sad at losing precious time with their dad.

The children’s experience of parenting decisions can sometimes get forgotten. Of course, they are children and they have to adapt. However, after parental separation, they have already experienced significant changes and it helps them if they know they are being considered in decision making.

5. What are the possible alternatives? 

When Sally initiated mediation, she had not considered alternatives. For her, the only decision was that Rob would have to make sacrifices and she hoped the mediator would help him to see that.

Rob was also stuck in his position of expecting Sally to stay home or get a job to work around his.

The mediation was at an impasse.

When Rob realised that this was important to Sally he started to think of alternatives to spend more quality time with the children in the holidays. Sally agreed this would be worth discussing. Rob also suggested that his parents would like more time with the children, and perhaps he and the children could all stay there when he is working. This opened up a whole new conversation with options.

When the focus shifts to alternatives it can ease the tension. Parenting disputes can often get stuck in opposing positions. However, when each parent is willing to negotiate and to consider alternatives, the conversation can shift toward one which is solution-focused and resolution is possible.

6. What will happen if we can’t agree?

Try as we might, mediators can’t wave a magic wand. Family mediators are there to facilitate the conversation, but they can’t force the two of you to resolve the dispute. So it’s beneficial to consider what will happen next if you can’t agree.

Sometimes it’s not a single issue as in this example. Equally, alternatives aren’t always easily discussed.

When parents can’t agree they sometimes initiate the court process to have the disputes resolved in court. This requires careful consideration as it is both time consuming and costly and may not result in the outcome you want.

Before entering into mediation it is beneficial to consider what will happen if you can’t agree. In family mediation, if the court is the only other option, the potential emotional impact and financial drain on the family may not necessarily be in the children’s best interest.

This is one example only and you may have very different issues. Try writing down your own answers to these questions before your mediation, or when trying to come to an agreement with your co-parent.

Co-parenting in a Crisis

During times of crisis, we tend to react from a base of fear. However, we all react or respond to fear in slightly different ways. And that’s okay. The important thing in co-parenting during this time is that you recognise there is more than one way to get through this. It’s also likely that you may have different approaches as to what’s best. The biggest concern of co-parenting through this current coronavirus crisis is if the children can move between homes safely during any future quarantines. And if not, what will happen to existing court orders or parenting agreements. I know some parents are concerned about breaches or being accused of withholding children. In short, you should follow the government advice or specific advice of your health care professional. If you or your children are diagnosed or being tested for coronavirus, then the government health advice is that you will be required to stay in isolation.  This may affect your normal co-parenting routine. It’s better to be prepared and have this conversation in advance. Work out what you will do, how you will both manage and you what you will do if the children are disadvantaged in time with the other parent. It’s best if you can be flexible, considerate and accomodating. Most of all, be child-focused. If being in quarantine is a contravention of existing orders then I recommend the following. If you normally communicate directly, email or phone your co-parent and advise them of the current situation. Talk rationally, calmly and sensitively about the situation at hand. Be considerate that this may disrupt their routine and may require a short adjustment period for them to consider. It can be a good idea to flag a conversation with an initial message that says “we might have some disruptions due to the coronavirus. I was wondering if we could talk this through?. Can I call at (time)?” If you have, or feel you need a lawyer, contact them and ask them to communicate with your co-parents lawyer about the current health status and any anticipated changes in parenting time. If you are the parent who is not with your children and the children can not be safely returned to you for your scheduled time, remain calm. These are exceptional circumstances and eventually, life will be returned to normal. These are my recommendations
  1. Communicate calmly, openly and with a child-focused approach.
  2. If quarantined, facilitate FaceTime calls for the children with their other parent.
  3. Act on specific medical or government advice only.  Do not listen to advice from well-meaning friends or social media.
  4. Keep each other openly and honestly informed in relation to the health status of yourselves and people the children may have come into contact with.
  5. Some people who have compromised immunity disorders may be on specific advice to remain in social isolation at this time. This may be extended family such as grandparents.
  6. If you or the children are NOT diagnosed or being tested for coronavirus, then shared parenting should continue as normal.
Please remember, we are ALL going through something unusual. Keep calm and keep communication open, honest and sensitive to the fact that we are all dealing with something a little unknown. However, there is no reason to panic. Calm communication is your best tool. See our parenting after separation course for more tips on improved communication.

False Allegations and Family Law Reform

The recent announcement of another inquiry into family law reform has caused yet another divided response among those affected by the system, and those who work within it. 

This current battle of family law is now focused on the issue of false allegations. This subject is one which I believe is often misunderstood and misrepresented. 

Before this can be discussed it is important to acknowledge that family violence is a widespread problem in Australia and affects women, men and children as victims. The broadening of the definition of family violence from a violent assault, to include behaviours, has increased the opportunities for allegations to be raised in court as having an impact on the wellbeing of family members. 

Critics of the inquiry are questioning if false allegations are a genuine problem. There seems to be a fear that if we discuss the issue that somehow parents in family court will not feel confident to speak up about their experiences. I don’t foresee that there will be any consequences on the individuals, rather what will come from this inquiry is an awareness, data and hopefully an improved system. These are uncomfortable conversations, but they are vital if we are to have a fair and just process. 

False allegations are often reported in the media as being rare or almost non-existent. This is factually correct. Technically speaking, anyway. When giving evidence you are required to take an oath, to tell the truth. Failure to speak the truth is known as perjury. A false allegation can only be proven if there is a prosecution for perjury, and this is extremely rare in family court matters for a number of reasons. 

Firstly, there was the repealing of Section 117AB of the family law act which means that a complainant in family law can not be prosecuted for perjury unless there are extreme extenuating circumstances. Secondly, after enduring years of a family court matter, most people are financially and emotionally drained and can not sustain more time and energy in the court system. 

The Australian Institute of Family Studies holds an archived report on a study of some 300 family law cases in which allegations of family violence were present. The report states that it was not within the scope of the study to determine if allegations were ‘true’ or ‘false’, but rather the strength of the ‘probative’ evidence to support the claims. Probative refers to the weight of the evidence, meaning if it was substantial enough, or not, to be considered in a judgement.

According to the published data, 82% of the cases involved allegations which did not hold probative weight to determine those allegations as substantiated.

As the battleground of family law has evolved over the past 50 odd years, we have seen the initial complainants being the vast majority of mothers, to a significant rise in complainant fathers. Each trying to get in first to lay claim on the children by proving the other parent unfit. And so, the data shows that those alleging spousal and family violence in family court are both mothers and fathers. Where allegations were corroborated, it was more mothers who provided evidence (56% mothers; 33% fathers). 

The Evidence Process

When being able to provide evidence of family violence the court process often relies on subpoenas of police reports, medical and therapists attendances, if they apply. These reports add to the probative weight. The absence of probative weight does not mean allegations are false, merely that there was no evidence. 

The consequence of family court decisions made on hearsay can give dire and life long impacts both for the accused, and their children.  As can ignoring them altogether.

Determining family violence allegations is an extremely complex matter for the judiciary. Family violence is known to largely occur behind closed doors and includes a wide range of offences including subjective behavioural matters, such as a feeling of being controlled or abused. A judge must make a determination on ‘he said; she said’ version of the events and look for patterns or other behaviours which corroborate the allegations being made. 

In considering if the current family law inquiry is necessary, you must also consider the impact of judgments made with little or no supporting evidence. For some children, this can result in the permanent removal of a parent, or limited time with them.  It is in the best interests of the child to ensure this process can pass scrutiny. And if not, then we improve it until it does.


Countering Arguments Against Shared Parenting in Family Law

Have we reached a tipping point in the child custody debate?

Despite strong public support and mounting empirical evidence in its favor as an ideal living arrangement for the majority of children of divorce, shared parenting as presumption in family law has historically been met with skepticism among some legal and mental health professionals. In a recent article in the Journal of Divorce and Remarriage, I describe how the past 40 years have produced three distinct “waves” of arguments against shared parenting, and how these have stalled meaningful legislative reform toward the establishment of shared parenting as a legal presumption, placing the burden of proof on shared parenting proponents to defend their position and demonstrate its efficacy, in a way that supporters of more traditional sole custody arrangements have not had to face.

The first wave of arguments was advanced in a manner that considered the idea of shared parenting of children by parents in conflict after divorce as an outlandish proposition. Three distinct arguments were made to discredit the concept:

First, it was asserted that children have one primary attachment figure to whom they become bonded, almost always the mother, and that any period of separation from the primary attachment figure will damage children’s development and compromise their well-being. At the same time this argument was advanced, however, reformulations of attachment theory emphasized the fact that children typically formed primary attachments to both parents, that these attachments were equally important for children, and that children tenaciously continue these attachments in changing circumstances, including after divorce.

A second line of argument was then put forward, stating that child development would be compromised when children move back and forth between two homes, “bounced around like a yo-yo,” with constant movement, two sets of home rules and different parenting styles. The research on children living in two homes found, however, that children themselves generally did not report such problems, and that sustaining attachments with both of their parents protected them from the adverse child development outcomes often accompanying divorce. In fact, lengthy separations from either primary attachment figure were found to be detrimental to child development.

Finally, a third argument was made that it is harmful to child development to disrupt the caregivingstatus quo, and that mothers should thus retain their role as the primary day-to-day caregivers of children. Research suggested otherwise, however: shared care of children was becoming the norm in two-parent families and disrupting shared parenting would in fact be more likely to lead to instability in children’s lives.

The second wave of arguments against shared parenting were presented as more concentrated and in-depth rebuttals of the concept, especially in situations where parents disagreed or were in conflict over child care arrangements after divorce. First, it was argued that shared parenting after divorce exacerbates parental conflict, and that children would be drawn into the conflict if shared care arrangements were imposed on families. Shared parenting, therefore, is only suitable for parents with little or no conflict and who get along well as co-parents. Again, research findings challenged this viewpoint: in actuality, an adversarial “winner-take-all” approach to child custody exacerbates parental conflict, leading to adverse consequences for children, whereas conflict is reduced in shared parenting arrangements where neither parent feels marginalized from his or her children’s lives. Further, research demonstrated that children do better in shared care arrangements even if there is conflict between the parents, and that sustaining both relationships is a protective factor for children in high parental conflict situations. Not all conflict is bad for children. Ongoing and unresolved conflict, however, is harmful to children; in such situations, rather than depriving children of a relationship with one parent, interventions to reduce conflict and support child development, such as assisting parallel parenting, therapeutic family mediation, and parenting education programs, were found to be most protective of child well-being. In response, a second critique of shared parenting was then advanced within the “second wave”: in high-conflict families, shared parenting exposes victimized parents and children to family violence and child abuse, and a legal presumption of shared parenting will allow abusive parents to continue their reign of terror in families. This argument, however, misrepresented the position of shared parenting proponents, who made clear that a legal presumption of shared parenting should always be rebuttable in cases of violence and abuse, as in such cases the safety of children and victimized parents is the primary consideration.

The third wave of arguments against shared parenting acknowledged that shared parenting may be beneficial for most children and families of divorce, including those in high conflict, but cautioned against the use of presumptions in family law, arguing that the best interests of children are different in each individual case, and that judges should retain their decision-making authority when it comes to post-divorce living arrangements for children. In response to this viewpoint, it has been pointed out that research on post-divorce outcomes for children and families has now established which living arrangements are most likely to support healthy child development. Without a legal presumption, judges make decisions based on idiosyncratic biases, leading to inconsistency and unpredictability in their judgments. And with two adequate parents, the court really has no basis in either law or psychology for distinguishing one parent as “primary” over the other.

It may be asked, then, after 40 years of debate, whether we have now reached a tipping point, when researchers can conclude with confidence that the best interests of children are commensurate with a legal presumption of shared parenting responsibility after divorce. Summarizing the state of current research in two recent special issues on shared parenting in the Journal of Divorce and Remarriage and the Journal of Child Custody, leading divorce scholar Sanford Braver asserts, “To my mind, we’re over the hump. We’ve reached the watershed. On the basis of this evidence, social scientists can now cautiously recommend presumptive shared parenting to policymakers…shared parenting has enough evidence [that] the burden of proof should now fall to those who oppose it rather than those who promote it.”

References

Kruk, E. (2018). “Arguments Against Presumptive Shared Parenting as the Foundation of Family Law: A Critical Review,”  Journal of Divorce and Remarriage, 59 (5), 388-400.

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The Changing Legal Landscape of Co-Parenting

The legal landscape to facilitate co-parenting is changing. The following article regarding the co-parenting arrangements in the Ralton case first appeared on Gown and Gavel

The recent case of Ralton and Ralton heralds a timely warning that the Family Court judiciary is taking notice of the intricacies of co-parenting in Family Law matters, particularly where the psychological impacts on the children are a result of one parent withholding the children against court orders.

In Ralton and Ralton the original parenting orders were that the children live with the mother and spend time with the father. This was agreeable to all parties and continued for a three-year period. However, by August 2014 all contact with the father had ceased and he filed for contravention of the orders.

In 2016 Judge Riethmuller who, after considering all the evidence over a 5-day hearing, determined that the best interests of the children to have a relationship with both parents could only be facilitated if the parenting was reversed. The children were ordered to live with the father and spent time with the mother.

The mother appealed the decision to the Full Court of the Family Court in 2017, however the original decision was upheld and the children remain in the primary care of the father.

The decision in Ralton was so extreme in its nature, that Judge Reithmuller had the children sequestered in a private room within the court building –  supported by psychologists and social workers – as the decision was handed down.

The details of this case were such that even though the mother was seen as capable in meeting the day to day needs of the children, her actions in making the children fearful and anxious of the father created a damaging psychological impact. The grief and loss associated with removing the children from the mother’s primary care was considered far less than the long-term psychological effects of the alienation from their father.

The orders made were so that in order to help the children bond adequately with the father, the mother have no contact for six months and then be re-introduced to her via supervised visitation.

So, what does this tell us about parenting after separation?

Recognising the importance of a healthy relationship between children and their parents, the Family Law Amendment Act, 2006 was enacted by the Howard government to facilitate shared parenting. The legislation is in itself sound, however if one or both parents refuse to put the best interests of the child first, it is frequently tested.

While as a society we have previously believed that a mother is the more natural choice for primary carer, it is no longer guaranteed that sole parental responsibility will be granted to the mother on that basis alone. Fathers have demonstrated that they are, of course, capable of the job and willing to take it on, so much so that the Courts are willing to make that transition.

Co-parenting after separation is essential in maintaining a healthy family dynamic for the children and going forward, parents need to be able to do this well. It all sounds good in theory, of course. But how can you ensure that you are giving it your best shot? Here are my top 4 tips to make the art of co-parenting a success in your life.

Communicate directly with one-another

The less challenging matters that come across my desk have one thing in common and that is – that the parents talk to each other – and on a regular basis. Pick a mode of communication that works for the both of you, and stick to it. And no – that doesn’t mean using the children to relay messages! Schedule a weekly phone call and make it a routine. Even parents that have the most trouble communicating with each other find that they are able to keep it respectful for ten minutes whilst they discuss their children. If the idea of using the telephone gives you the shivers, then I recommend using email or an instant messenger service. Using the children to relay messages almost guarantees a heightened conflict situation, one in which the children will witness. Have you ever received a message through the children and then muttered some unpleasant response under your breath only to realise that your child is still standing there? Not only that, but children will often relay the message incorrectly.

Keep changeovers as short as possible

Try and keep changeovers short and sweet. Give the children a smile so that they won’t feel guilty about going with the other parent.

Be flexible with parenting arrangements

Try not to argue about parenting arrangements in front of the children. If the other parent wants to take the children to a one-off special event that you know they will enjoy, like a show or a footy game which happens to fall on one of your days, let the children go. Sure – try not to stretch the friendship in this regard and always give plenty of notice. The children will thank you for putting their enjoyment ahead of your own.

Encourage the children to communicate with the other parent

Facilitating communication with the other parent whilst the children are in your care is a must. Make sure you share special moments or accomplishments with the other parent, even if it is just via photos or emails and make a point of telling the children that you are doing so. Remind the children of special occasions, like the other parent’s birthday and help them make or choose a special gift. Being present when the children give the gift to the other parent is also a special touch. Having the children feel that they can express their love to the other parent freely and openly without fear of being admonished is essential to a healthy and positive co-parenting arrangement.

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