Family law has the capacity to inflame emotions in a way that very few other issues can. Most will have a story of a friend, acquaintance or family member that has been let down by the system and unfairly derived of time with their children or their material wealth post separation. It is difficult to countenance criticisms of the system that are more general in nature. The law is highly discretionary in that what is in the best interests of a child will depend upon that unique child and his or her situation. Similarly, what is just and equitable when it comes to the division of property will depend upon a myriad of variables, and some might argue rightfully so. One rule for all has potential to generate enormous injustice.
Whilst your lawyer should be in a position to provide you with specialist advice about what will happen in the event that a matter progresses to Court, ultimately you’re unlikely to be amongst the limited number that ultimately reach the doors of the Court and a more pragmatic approach is required in order to get matters resolved quickly and on the best terms for preserving your post-separation parenting relationship.
Negotiating a path following separation is a difficult thing, and often there is little guidance as to how to move forward in a positive way. The desire to protect a child from the repercussions of separation is often the highest priority for separating parents. Whilst the law has the same agenda, it rarely offers practical guidance in relation to protecting children from emotional harm in the context of separation. Lynne Clark and Cheryl Smith are both social workers, with extensive experience in the dynamics of separation and the effect of relationship breakdown on children. In their book Separating Respectfully they have endeavoured to identify twelve `rules’ to protect your children from emotional harm. They include:
- Parents must make the decisions around how each child will spend their time
- Adhere to any parenting agreement reached
- Be on time
- Use flexibility wisely (consistency is important)
- Negotiate with the other parent before you tell your children of any proposed changes
- Never communicate your arrangements through your children
- Do not question your children in detail
- Do not believe all your children tell you
- Respect the role of the other parent, even if you no longer respect the person
- Behave respectfully
- Prioritise your child’s experiences (in other words maximise the opportunity for your child’s positive experiences whilst in your care)
- Focus on yourself and what you are doing right rather than on your former partner and what he or she is doing wrong.
Efforts were made by the Howard Government in 2006 to move the Family Law from a more adversarial or Kramer v. Kramer orientation to a more collaborative approach. Long term research has yet to establish how successful these changes have been in altering the experience of children caught up in parental conflict.
More information in relation to the publication Separating Respectfully can be obtained from www.separatingrespectfully.com
The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.