A frequent complaint of parents who consult with me regarding their post-separation parenting is the other parent’s inability to negotiate. On literally anything! Disputes over parenting time, travelling with children, or child-related expenses are among the more common issues complained of. What should (and could) be simple matters of ‘give and take’ are unachievable for some separated families. And of course, in some cases, both parents are rigid and unwavering.
As the disputes become more common the conflict escalates. And, in the bitter cycle of conflict, there becomes an ingrained pattern which seems to be impossible to break free from. They become known as parents in ‘high conflict’ and sadly, the only remedy available to them becomes the Family Court.
‘Why do I have to go to court just because they can’t be reasonable?’
In these instances, the complaining parent is often the one who will initiate Family Dispute Resolution as a final measure to avoid court proceedings. Sadly though, the non-negotiable parent will rarely move from their position, even in mediation. Or if they do reach an agreement, it is sometimes rescinded afterwards.
Despite the expectations of our clients, family mediators don’t have a magic wand. We are intermediaries to facilitate conversations and help guide where appropriate. What we can’t do is force or enforce agreements.
The non-negotiable parent is usually reliant on two things.
1. The complaining parent will give up, or give in.
2. The complaining parent will never give up, and as the disputes rage on over the children’s lifetime, the non-negotiable parent feels they’ve won.
In either of these scenarios and despite what each parent thinks of the other, the children have lost.
For parents experiencing such conflict, the option of Family Court is akin to giving them a hammer to fix a hole in the wall. By the time they have endured what is anticipated to be at least two years of court attendance, the conflict has only increased. They have had more opportunities to become further invested in polarised positions and because that information is submitted in the form of a sworn affidavit, they feel they can never back down.
What these parents actually need is support and clear, (ideally) enforceable, guidelines on parenting agreements. It’s not enough to have the child’s best interests written into legislation when what is in the children’s best interests is wholly subjective. Each parent will have their own views on that, and so relying on a court is their only option. I have to ask – ‘why?’.
In some cases, the Family Court will order family therapy after the matter is finalised. Family therapists report this is often ineffective as the pain and hurt from conflict is so deeply ingrained that it is almost impossible to shift from. Not all cases, naturally – but too many to ignore.
What if this concept was flipped on its head? What if these families (including children) were supported therapeutically for two years before being able to file in court? I am not proposing this is the whole solution, merely that there are other solutions other than what we currently have.
Parents who are unable to negotiate are likely to respond better in the long term with therapeutic interventions, not legal ones. In many cases, they are simply unable to negotiate, or to see what appears to be practical solutions, and so asking them or forcing them through court order is rarely truly effective. Nor is a protracted family law matter usually in the best interests of children.
There is an enormous cost to society if we do not radically change the pathway for parents in dispute. We tend to focus on fixing the legal system when what we need to consider deeply is embarking on a support pathway which makes the court system far less relied upon. Our children, the very people we purport to protect, carry the lasting burden.
Jasmin Newman is a Family Dispute Resolution Practitioner, Parenting Coordinator and Child Inclusive Mediator located on the Northern Beaches of Sydney. In addition, Jasmin provides ‘parenting after separation‘ and ‘breaking the cycle of conflict’ courses online – available around Australia. Phone: 1300 919 019.