The Minefields of Separation and Divorce

Divorce, Property Settlement, DVO's and Consent Orders

I visited a friend in the US in 2016 and we discussed the topic of divorce, property settlement and consent orders for shared care of children. She couldn't believe we had to apply for three different orders, where there it is all covered when you apply for a divorce. When you think about it, why can't one court do all three jobs at one time and if problems arise in the future where changes need to be made in the best interests of the children, then that bridge can be crossed then?

But here in Australia, this is just how it is...where the justice system has become a legal animal and wants to devour as much of our money it can, making us apply again and again. Where if a more streamline system has worked in the United States for many years, then why haven't we adopted a similar one here? From the outside looking in, it is hard not to be cynical of the whole lot of them, from Judges to Magistrates and all the way down to the bottom feeders called lawyers. Lining their pockets and acting like they are God.

Once you separate I think the problem to tackle first is orders for the access of the children to each parent, which is deemed to be 'In the best interest of the child'. Even a serial killer's children have a right to see both their parents because these types of orders are not about the parents per se, they are about the child and this is where some parents become confused. They think it is about their right to see the child but it is actually the opposite. The Family Court couldn't care less how much he hates her, or what she thinks of him...their focus is on the child, which is the only good news on a bad news day.

Lawyers try to paint the picture when their client wants to deny access. Just because he cheated does not mean the child should not know his or her father. He may have been a bad husband, but why should a child suffer because a wife deems him unfit as a partner. And this is where we all need to step up...we are the grown-ups who far too often act like spoiled children. If both parents can see that just because they couldn't get along they are still parents. And this is where consent orders can be the cornerstone of this new co-parenting arrangement.

Unfortunately, this does not always happen, and children can become pawns in a game of hate and revenge. ”Hell hath no fury.” It may not turn out like this for you, but consent orders for children to spend shared time with both parents that are done as soon as possible can help avert situations arising in the future when invariably things change.

In the '50s, '60s, '70s and '80s, right through to today, domestic violence has been a scourge on our society, and I understand that domestic violence orders are there to protect vulnerable women and children but because of the knee jerk reactions, and because we are all looking for ways to change the statistics, there are some who see an opportunity to take advantage of the courts, who employ lawyers who know that the weight of evidence is not the same as in a criminal matter, with Magistrates who look at DVO applications as a simple matter of the aggrieved signing an affidavit, and the respondent accepting the terms...no trial required because after all, to accept without admission leaves no one any worse off after the two years (or up to five years) is completed without breach.

In a criminal court, the proof of guilt has to be 'Beyond reasonable doubt' whereas in a DVO application it does not...and so many respondents find they are in breach because they misunderstand what no contact means. Even if the initial call, text or email is made by the aggrieved. The clauses in the temporary order will generally say 'no contact except by written letter and only if the aggrieved consents. Which begs the question of how you are able to get that consent other than employ a lawyer. And there is another way the legal system self perpetuates.

”Honey, can we talk about what has been happening?” Get that call and become involved in conversation and you will go from a temporary order to a two to five-year order as quickly as you can say “WTF?”

So, if you find yourself with a couple of police officers standing on your doorstep with a temporary application in their hand, you had better understand the reality and the implications of that because the courts and the lawyers couldn't care less who made the first call, once you breach that temporary order, you have no chance of avoiding a long term domestic violence order against you. In reality, you have little chance of avoiding the DVO even if you do everything right.

Because Magistrates attitudes towards the whole matter are,” Just accept it, don't breach and after two years you have no record, nothing to answer for”. Which is the biggest load of BS you will ever hear. DVO's overlap consent orders, you must always have written permission to approach the aggrieved's home, only to collect the children, you cannot call her to see when you can see the children without her written permission, fart in her general direction and unless you have asked for written permission, you may be in breach, which can mean getting yourself a criminal record.

The only real positive is that police are so busy dealing with actual serious breaches, that your chances of being charged for trying to access your kids are slim. But I can't help but think that the pendulum has swung to a point where no matter the truth, this current system can and is being abused by people who have ulterior motives. Yes, there are many who live in fear, that are being killed by a former and current spouse, but surely there must be something better...where a simple allegation is enough to start a ball rolling to places that are not always fair or just.

Orders for children should be the easiest to make, but if there are issues that cannot be mediated then an application for parenting orders can be made to the Family Court. If for some reason the other party refuse to attend mediation or do not make reasonable efforts to negotiate, then the facilitator can issue a form 60i...which is a requirement needed before any court proceedings can begin. If you go to the Family Court website you can get information on how to go about this process....it may seem daunting but it is just a matter of downloading the correct forms and filling them out correctly. This is very important and if you have access to community free legal services they can give the paperwork the once over because any mistakes will see your application rejected and you will then have to reapply which can cost months of precious time.

Whoever the kids spend most of the time with is deemed the primary carer, usually the mother, and a common arrangement is for the kids to spend every second weekend with the non-primary parent but can be any arrangement that suits.....one night during the off week for the non-primary parent is a great way to get a little extra time with them, picking them up from school in the afternoon and taking back to school in the morning. The orders will have every detail such as sharing school holidays but obviously work commitments can restrict your availability. Consent Orders are flexible to the extent that each individual order has a little escape clause built-in which reads...” Unless agreed by both parties in writing”...then the wording is to be followed.

And this is where it can all fall down in a heap...the orders are for the children, not the adults...so unless you are both committed towards the co-parenting agreement, then there is nothing to say that you have to have the kids when the orders stipulate, you are free to move away, or to just stop seeing the kids altogether. But this is not a good look if the other party decides to ask the court for changes to the original orders. But, even if this happens and the parent returns, the children will still have a right to see that parent again.

Let's say the primary parent is ordered to deliver the child or children to you for the weekend but doesn't show up...although this is technically a breach, there could be many reasons for this, and the fact is that for you to make a complaint to the court over just one or two breaches of this kind would be seen as wasting the courts time and there needs to be mediation before the courts will look at the case. So, with that being the case if the primary parent wants to cause you grief by these types of minor breaches, it takes time to get things back on track and can use a lot of energy and can wear you down to the point that you could ask yourself if it is worth it considering they can just keep doing it long term without much of an outcome.

It pays to record dates, times and reasons given for them not showing up. Collect enough of these and then, if mediation fails to provide a solution, you may have a shot at getting makeup time. They may also be ordered to do a parenting course and the penalties for major breaches are fines and up to two years imprisonment. Not having looked at previous cases, but I very much doubt that these penalties have ever been handed out by the Family Court because this would by and large disadvantage the children concerned, which goes against what they are trying to accomplish.

Is there any point to it all? Yes, there is. Because if you don't apply to the court for orders, as toothless as they are, you could be looked at as a parent who lacks the motivation to want to see your child, and any future application made by you to see them can be made more difficult because of that...you're damned if you do, but you're even more damned if you don't.