Sadly, sometimes people hate their (former) partner more than they love their child, says Nicholls Anzani Law partner Ana Anzani. Photo: djedzura.
When couples separate, few things are more emotionally charged than deciding where children will live and how time will be shared.
Parenting arrangements – whether mutually agreed in parenting plans, discussed in mediation or imposed by the Family Court – often reflect a moment in time, when emotions run high and children are at a particular stage of life, says Nicholls Anzani Law partner Ana Anzani.
After separation, parents are often grappling with anger, grief, and the sheer upheaval of building a new life, according to Ana.
“Separation can be extremely difficult, but it’s really important to prioritise your child’s needs. Parents are straightaway thinking about care arrangements for the children,” Ana says.
“That can be hard to do when you’re broken-hearted. In the beginning, it’s really tough, and when emotions are all over the place, your ability to make thoughtful and careful decisions is impacted.”
That’s why it’s important to ensure parenting arrangements don’t reflect that initial instability, Ana says.
She advises clients to separate their feelings for their former partner and recognise that the person is the mother or father of their child.
“You need to look at that person as the other half of your child’s identity – you can do so much damage if you are not child-focused,” Ana insists.
Psychology tells us that the impact of parental conflict on children can be devastating and has long-term consequences on their ability to form safe and secure relationships, affecting their ability to learn and develop to their full potential.
“Sometimes people hate their former partner more than they love their child.
“You have to remember courts are guided by the ‘paramountcy principle’: what is in the best interests of the child?”
So how do you work it all out?
Ana says that, on a case-by-case basis, a lot depends on the child’s age and stage of development.
“For a three-year-old, for example, the psychology tells us that for this stage of their development, they need to live primarily with their primary carer, and spend short, consistent periods of time with their secondary carer to nurture those attachments,” she says.
“It would be highly unlikely to have a week about arrangement with the other parent for a child in this developmental stage.
“At this age, the child does not have a concept of time, and it could be traumatic for them to spend significant time away from that parent. They are wholly reliant on their caregivers to provide for their needs and emotional regulation. To abandon these important principles will likely have long-term adverse consequences on the child’s development.”
When it comes to, say, an 11-year-old, at this stage of development, a week-on, week-off structure would be developmentally appropriate.
“An 11-year-old has developed life and emotional skills to cope with this type of arrangement,” Ana says.
“They can pack their own bags and have a say in what they take to Mum or Dad’s, they have formed decision-making skills and are seeking more independence.”
Courts want to see parents genuinely try to resolve parenting matters through mediation before resorting to litigation, Ana says.
This is where she likes to seek input from those with knowledge of child psychology and case law, who can support everyone involved in keeping the child’s best interests at the forefront of discussions.
You have to find an outcome that’s in the best interests of the children, says Nicholls Anzani Law partner Ana Anzani. Photo: Nicholls Anzani.
“We love doing work with ACT Family Conciliators – they are my go-to as mediators,” Ana says.
“They are very helpful and can explain things like developmental stages and what people should be thinking of in relation to the children. Often it can be a real wake-up call for parents!”
Whether you can revisit arrangements – when your three-year-old has turned into a teenager with their own world of homework, sport and social life – depends a lot on whether you’ve gone down a formal or informal path.
A key factor is whether the original arrangement is contained in a court order, Ana says.
“You can’t reopen final orders unless there is a significant change of circumstances,” she says.
“You can revisit parenting plans, and they can be quite effective depending on how they are drafted. Be as black and white as you can so there can be no misinterpretation.
“It’s really about whether a plan or orders will work for you and your family.”
Of course, nothing can shake up family dynamics like a new partner entering the scene.
“At the end of the day, we are adults and you can’t dictate who someone is in a relationship with – unless you have genuine concerns about your child’s safety,” Ana says.
“This would include things like previous domestic and family violence charges, or sexual abuse or assault, or subjecting to, or exposing the children to family violence.
“Judges are unlikely to change parenting arrangements simply because one parent doesn’t like the other’s new partner.”
The good news is that most parenting matters do settle by consent before a final hearing, Ana says.
Getting advice early is something she encourages.
“Some people come in to see me even before they separate – and it’s a good idea,” Ana says. “They can discuss their options – things like do I stay or do I move out and does that set a precedent,” she says.
The most important thing is to find a lawyer whose priority is an amicable and child-focused arrangement, Ana says. Above all, avoid “keyboard warrior” lawyers who only serve to feed into conflict – and rack up hefty legal bills.
“I say you can spend $200,000 at a final hearing, or you can spend that on your children,” Ana says.
For more information, contact Nicholls Anzani.
