Yamada & Cain – [2013] FamCAFC 64

This is a case involving the “best interests of the child”.  The mother appealed orders placing the child in the care of the paternal great aunt.

The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010.  The parents did not return the child after this visit, although it was supposed to last only four weeks.  Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana.  They lived a transient lifestyle, moving around a good deal, and switching schools for their other children.  The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him.  The aunt lived in Melbourne.

After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt.   In January 2011, the aunt brought Z to the airport to return her to her mother.  There she observed the mother being arrested by Australian Federal Police.  The aunt did not transfer Z and Z continued to live with her.   A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact.   The mother appealed.

Is Parenthood an Overriding Factor?

The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent.   The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order.  The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.”   The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at [121] that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child.  The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.

The Family Court disagreed, also basing its position on Donnell.  There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent.  Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”  Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”

Ultimately, the Family Court held that the law “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”  The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest.  The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.

The mother’s appeal was rejected.

In June 2018 the Australian Institute of Family Studies (AIFS) released a study ‘Children and Young People in Separated Families: Family Law System Experiences and Needs’ https://aifs.gov.au/publications/children-and-young-people-separated-families-family-law-system-experiences

The study included interviews with children and young people (10 – 17 years of age) who, as a result of family separation, had experienced the family law system.

Of particular importance to those who were interviewed was:
• For their parents to listen to them and take their views into consideration
• For the family law system to listen to them, particularly about safety concerns
• For the family law system to take them seriously
• To be better informed about the family law system
• Speaking to psychologists and counsellors during the family separation process was helpful.

The information provided contributed to the following recommendations:
• Give children and young people the choice to be involved in decision making
• Keep children and young people informed about the decision making process for example important decisions and dates
• Provide children and young children with a clear explanation of the new parenting arrangements
• Ensure children and young people have access to psychologists and counsellors during the decision making process
• Make sure that children and young children are safe and that there is scope to change the parenting arrangements.

The following video provides direct access to the voices of the children and young people: Quotes from the ‘Children and Young People in Separated Families Study’ – https://www.youtube.com/watch?v=9Vaw_hVOoO8&feature=youtu.be

The process of family separation and rebuilding is undoubtedly difficult. The work of organizations like AIFS provide the ‘science’ that is needed to support developments in the complex space that we work within. Our hats go off to AIFS for their hard work, and to the children and young people who allowed us into their world.

For the best advice about your family law parenting matter or family dispute resolution, contact Vanessa Mathews on 1300 635 529or [email protected]

Every day in my practice as a family lawyer, family dispute resolution practitioner and mediator, I hear stories of family violence and children at risk.

Whilst family violence is a tragedy in and of itself, more tragic is the suffering caused to the children who are exposed,

in one way or another – by hearing, seeing, feeling – incidents of domestic violence and/or the aftermath of family violence.

The following article in ‘The Age’ reports the findings of a new study by the Australian Institute Family Studies which confirms what we already know – that children who are exposed to family violence are at higher risk of suffering sexual, emotional and physical abuse.

The issue is ‘What can be done to prevent children from being exposed to family violence, thereby reducing the risk of future abuse for these very same children?’

The Australian Institute of Family Studies report, which will be released on Wednesday, also shows that children exposed to domestic violence from an early age are more likely to experience difficulties at school and have lifelong problems with social and cognitive development.

The report, Children’s exposure to domestic and family violence, draws on local and international research to examine the effects on children raised in abusive households.

It found young people who grew up around domestic violence were at higher risk of other forms of abuse, and that exposure to family violence was the leading cause of homelessness in young people.

“It affects their development in such a global fashion,” AIFS director Anne Hollonds said. “The problems are extensive and they go right across physical and mental wellbeing, cognitive development, which obviously affects academic achievement and employment.”

The study found child abuse often co-existed with domestic violence and that victims of persistent maltreatment in childhood suffered similar effects to trauma, which can lead to aggression, self-hatred and a lack of awareness of danger.

Ms Hollonds said the experience of children exposed to violence at home was not well understood and that a fragmented response meant the most vulnerable children were falling through the cracks.

“What we have is a fragmented patchwork of some services in some areas often operating in quite a siloed way,” she said.

“For example, domestic violence support for women might not always be focusing on the needs of the children. Similarly, adult services for mental health or drug and alcohol issues might not have a focus on the needs of dependent children.

“Unfortunately in some families the problems are multiple, it’s not just violence towards the other parent but there is also various kinds of abuse that the children directly experience. This multi-victimization of children requires our urgent attention.”

The Australian Human Rights Commission released a report on Monday that found up to five children in every classroom had experienced or witnessed family violence.

The National Children’s Commissioner, Megan Mitchell, said children were the “invisible victims” of the domestic violence scourge and that growing up in an abusive household could have a devastating lifelong impact on a person’s mental and physical health.

She said children exposed to family violence might also feel they needed to defend the parent, or be the one to call police or an ambulance.

Crime statistics show Victoria Police were called to 65,400 family incidents in 2013-14 and that children were present in more than one-third of cases.

According to the Australian Bureau of Statistics, more than half of victims abused by their partner had dependent children in their care at the time, with that figure rising to 61 per cent in cases of abuse at the hands of former partners.

Ms Hollonds said a multidisciplinary approach to domestic violence across health, child protection and family services sectors was needed to help the most disadvantaged families, who are often dealing with complex problems but face the most barriers accessing help.

“We have a late reaction policy culture and find it difficult to co-ordinate across portfolios,” she said. “The key is acting earlier because often we don’t find out about the problems people are having until they’ve escalated to a very serious stage, and by then children will have been affected.”

Read more:

The Age:  www.theage.com.au/national/kids-exposed-to-domestic-violence-more-likely-to-suffer-sexual-physical-abuse-20151208-gli3au.html#ixzz3tmyef5Ib

The Australian Institute of Family Studies:  aifs.gov.au/publications/evaluation-2012-family-violence-amendments

Lifeline for counselling and support: www.1800respect.org.au/

If you would believe you would benefit from legal advice about family violence and/or other relationship issues, please contact Vanessa Mathews, Accredited Family Law Specialist Australian family lawyers, Byron Bay Family Law & Mediation Specialists, Level 2, 599 Malvern Road, Toorak, Victoria, phone 1300 635 529, email [email protected]

Vanessa is an expert specialist Melbourne Divorce Lawyer with many years of experience in advising clients about family violence and family law issues.

Vanessa’s clients have kindly been willing to express their satisfaction with her work by writing, and consenting to have published, their testimonials on Byron Bay Family Law & Mediation Specialists, Melbourne Divorce Lawyers, website:  mathewsfamilylaw.com.au/stories/

Further testimonials as to Vanessa’s work may be found at Google Reviews:  click here

Separation and divorce hurts. There’s no getting around that fact.

Without special care and attention, children can be the unintended victims of separation and divorce. For them, their parent’s separation can open a floodgate of emotions, which, for children of any age can be difficult to process and express.

Many of the parents we speak with of course to want to minimise the impact of their divorce on their children, but do not always know what signs to look for. So how can you identify the signs that your child may be being adversely affected by your separation and divorce?

Although every child is unique, there are some clear signs to look out for:

Your child is feeling sad and cries more than usual

Your child could be sad and cry a lot. It might be more difficult than usual to comfort them. They might cry for no reason or react disproportionately to that which to you seem to be minor issues.

The things they cry over may have nothing to do with the separation and divorce however due to difficulty in understanding and accepting the changes to their family, their ability to deal with other issues may be diminished and they can become easily upset.

Your child gets separation anxiety

You or your former partner might find that your children don’t want to leave your side, or that they want to stay with the other parent and resist going with the other parent.

Separation anxiety for children is common when parents separate. Their anxiety is a result of the significant changes they are experiencing and staying close to one or both parents is their way of managing.

Your child is overly emotional and gets angry

When parents separate, it may cause the children to feel uncertain, insecure, worried or anxious. The complex emotions they feel and their inability to express their feelings may be ‘acted out’, such as angry verbal or physical outbursts or uncooperative behavior. Helping your children to express those complex emotions can help to release the anger and improve their wellbeing and anxiety.

Your child is withdrawn and has lost interest in activities

The stress of parents separating can result in children withdrawing into themselves and refusing to engage in activities they have enjoyed in the past. Some children stop hanging out with their friends, preferring to spend all their time in their room, keeping a distance from their family and doing things by themselves.

Decline in school performance

When children are tackling a stressful situation at home, it can directly impact on their performance at school. The stress at home takes so much of their attention and energy and they may have difficulty focusing in class.

At home, they may be anxious and distracted, unable to focus on homework, negatively affecting their academic performance.

The dip in academic performance can result in further anxiety for the child; they feel terrible about falling behind, compounding the situation with another stressful situation. If your child is struggling at school after separation, it is a good idea to inform the school about the situation at home.

Conclusion

Separated parents feel responsible for their child’s suffering. Parents must remain united in their commitment to ensuring that any adverse impact on their children is kept to a minimum, and, if any are identified they are immediately met with an appropriate united response. Conflict between parents will certainly exacerbate the impact on the children, potentially dramatically.

If you detect a dramatic change in your children’s behavior and emotions, and your efforts to support them aren’t helping, please seek urgent help. Early intervention can help both you and your children to get the support required to see you through this difficult time.

Recommended Post: Family Violence and Children at Risk

Second marriages, partnerships, step-families present challenges, new opportunities after separation, divorce

Relationships Australia has prepared this informative summary about challenges and complication of re-partnering after separation, divorce.

In second partnerships, couples are often more aware of the difficulties in establishing a successful relationship and are more committed to making the marriage work.

Both second marriages and step-families have to overcome some difficult hurdles. These hurdles can present significant challenges to the couple in their relationship as partners and as parents.

Unfortunately, many second marriages and step-families, despite their commitment to making things work, fail to get over these hurdles.

This page outlines some of the challenges and complications of re-partnering and step-families.

The decision to re-marry or re-partner

Before you re-marry or re-partner, you should consider the following questions:

• When?
• Why?
• To Whom?

Listen to any doubts. If necessary, wait a little longer

When?

The simple answer is after you have fully come to terms with the end of your previous relationship.  This is particularly important if you did not want the first marriage to end, and had to deal with the pain of leaving or being left by your previous partner.  It takes longer than many people expect to get over the end of a long term relationship, even if you were unhappy and felt that the end was inevitable.

Some studies suggest many people take at least two years to adjust to the end of a long term relationship. There are many exceptions to this. Some people take longer, others adjust more rapidly. Ask yourself:

• Do I find myself thinking about my ex-partner and do these thoughts still arouse strong feelings such as anger and resentment?
• Have I adjusted to living alone again?
• Have I regained a sense of self-confidence?
• Can I look back on that relationship and recognise some of the things that contributed to its breakdown?

In other words, am I emotionally free to re-partner? Can I put all my emotional energy into this new relationship without allowing my feelings about my previous relationship to get in the way?

Just as you cannot re-marry until you are legally free to do so, being emotionally free to re-marry is also important.

Why?

Unfortunately this question is often overlooked. Are you thinking of re-marrying or re- partnering because you want to be with someone whom you love or do you want to re-marry or re-partner for the sake of being in a relationship, or to provide a two-parent home for your children?  Being alone is not easy after being married or in a long-term relationship, especially if you have children living with you.  However, moving too rapidly into a new relationship can create a new set of problems.

To whom?

Past experiences influence our choice of partners.  This is especially true of a second marriage.  Be realistic about what worked and what didn’t work in your first marriage when making a decision about a new partner.  Learn from that experience to clarify what sort of partner you want.

Being in love is not enough to make a relationship work especially once the initial excitement has worn off.

The following organizations offer separation, divorce counselling:

Family Relationships Centre:  http://www.familyrelationships.gov.au/searchpages/searchpage.aspx?KEYWORD=frc%20not%20pop&RESOURCETYPES=Service

Relationships Australia: http://www.relationships.org.au/what-we-do/services/counselling

CatholicCare: http://www.ccam.org.au/

Family Mediation Centre: https://www.fmc.org.au/marriage-counselling.php?gclid=Cj0KEQiAqK-zBRC2zaXc8MOiwfIBEiQAXPHrXsvDPeRotm4nM6DHg4zIk5QIa_fiidlbpIzCf9gbUlYaAoXl8P8HAQ

Divorce is painful for everyone concerned, especially children. During this challenging period, children need love, support and contact with both parents.

Creating certainty about the future is crucial for children when their parents separate. Parents coming to a mutual agreement about parenting arrangements can help to provide clarity and certainty.

When parents agree

Following separation, parents may agree on a parenting arrangement that works for them and the children. The agreement should focus on providing for the needs of the children and may include financial arrangements.

A parenting arrangement can be agreed orally, in writing or put into a formal court order known as ‘consent orders’ (which requires an application to the court but does not require a court appearance).

When parents don’t agree

If parents can’t agree on parenting arrangements, they can apply to the court for a parenting order. Usually (except in the case of family violence and other specific circumstances), parents are not permitted to apply for a parenting court order until they have first attempted family dispute resolution (mediation).

The court’s primary concern will be to protect the children from psychological or physical harm. The court will address this before deciding about parenting arrangements.

The Australian Government has published a book to help develop parenting plans. This resource can help prepare clear, practical parenting arrangements that are focused on what’s best for the children.

What to consider when creating a parenting agreement?

When making parenting arrangements, parents may consider a range of issues including:

• The capacity of each parent to provide day-to-day care?
• The age of the children?
• The arrangements for the children before and after school and during  school holidays?
• Will the children spend their time with other significant people in their lives, like grandparents or other relatives?
• The children’s educational needs?
• Any cultural considerations?
• The special needs of the children, including educational and medical?
• The children’s wishes, having regard to their age and stage of development?
• Other practical considerations such as transport and accommodation expenses?

While a routine may be best for your children overall, flexibility is likely to be an essential ingredient of a parenting agreement.

Relocating with children

If you are thinking of relocating with your children at a distance that would dramatically affect the time they spend with the other parent, you will need to come to an agreement with the other parent. If agreement is not reached, an application to the family law courts seeking permission to relocate the children will be required.

The proposed relocation destination may involve moving intrastate, interstate or overseas. Consider how the relocation will affect the children’s relationship with the other parent and ask yourself the question ‘Would the move be in the children’s best interests?’ – the court will ask the same question.

What’s next?

Consider what is best for your children’s short-term and long-term wellbeing.

Work out what concerns need to be addressed in your parenting arrangement.

Decide whether you want the parenting agreement to be an informal oral or written agreement, a parenting plan signed and dated by both parents or a court order obtained by consent or by order of the court (judge made order).

Contact an accredited family law specialist or family dispute resolution practitioner to obtain the advice that you need to resolve your post-separation parenting issues.

by Dr. Robin Deutsch, Psychologist

1. Have a very specific plan for the holidays so there is no opportunity for confusion or conflict. Parents may alternate or split holidays, but when there is disagreement about this plan, consider the longer view of alternating holidays by even and odd years. Holidays are often a time of heightened emotions, and the reality of the loss associated with separation or divorce is no more apparent than when parents must spend a holiday without their children or without old traditions.

2. Try to continue traditions of the past for the children. If they are accustomed to spending Christmas Eve with one extended family, try to continue that tradition, if not every year then in alternate years. Parents should consider maintaining some of the family traditions the first year after the separation, and alternating beginning the following year.

3. If you can continue some traditions together, make them clear, attending to details of who, what, where, when, and how. Some families are able to be together without conflict arising, but parents often have different expectations about the experience itself, as well as the amount of time they will be together. The most important thing for the children is that they do not experience conflict between their parents.

4. Create new traditions that feel special to the children and family. This is an opportunity for the new family configuration to establish new traditions for the holidays including creation of a special holiday celebration or experience on a day other than the actual holiday. It is also an opportunity for the adult who does not have the children, to establish new practices such as time with friends, volunteering, movie days, and travel.

5. Think long-term-what do you want your children to remember about holidays when they have their own children? For children, holidays are magical. It is often the little rituals and practices that are most memorable, such as baking a pie, playing a game or lighting the fire.

6. Remember, children’s memories include all senses what they saw, heard, smelled, tasted and touched. To the extent possible, create a memory that involves each of these senses and describe it, e.g. we always listen to this music, eat cranberry sauce, watch this movie, read this book, take this walk, and cut these branches. Do not allow conflict to enter into these memories.

7. Self-care is very important. Life for the adults has significantly changed. Find new ways to care for yourself, e.g. exercise, friends, books, movies, clubs, martial arts, dance, classes, activities that bring new energy and attention. You want to rejuvenate yourself and refocus on something to help you reconstitute yourself in your new life.

8. Keep your expectations small and be flexible. Focus on one thing that matters most to you during the holidays, e.g. some sense of connection to your family, having sometime with extended family or close friends, creating a new tradition, continuing a tradition. Your holiday time will not be the same, but you can decide that you will have one small goal that you will work toward creating or preserving. Holidays may be accompanied by unmet needs and dashed hopes. By thinking small you can manage disappointment and decrease stress.

9. Though you, the parent, may feel disoriented and lost in the changed family, keep your focus on the children and the new family constellations. Make the holidays about your children, which means helping them to feel good about spending holiday time with the other parent.

10. In ten years or twenty years, what do you want to see when you look back on these years of change? From that long view you can highlight the tone and experience of these transformed holidays. Remember, children who find holidays stressful because of the conflict between their parents, have terrible memories as adults of holidays and of special family moments. It is in your hands to create fond, pleasant memories for your children. They can be traditional or not, but the message is that you and our family are important and we find ways to celebrate and enjoy holidays.

Full attribution to Dr. Robin Deutsch provides consultation, mediation, parenting coordination and expert witness services in Wellesley, MA. She developed and was the director of the Center of Excellence for Children, Families and the Law at the William James College. Previously she was an Associate Clinical Professor of Psychology at Harvard Medical School. Dr. Deutsch was the co-chair of the AFCC Child Consultant Task Force. She served on both the AFCC and APA task forces that developed Guidelines for Parenting Coordination, the AFCC task force for Guidelines for Examining Intimate Partner Violence and the AFCC task force for Court-Involved Therapists. She is the past president of the Massachusetts chapter of AFCC, past president of the AFCC, and former Chair of the APA Ethics Committee.

The following informative article about coping  with separation and divorce at Christmas was published by Relationships Australia www.relationships.org.au

Resources

For some people, Christmas can be the most stressful time of the year. People can feel increased financial pressure from the costs of buying gifts, entertaining and holidays, and there can be increased strain from spending time with family members. For those people with complex family situations, such as separated families, Christmas time can present even greater challenges. Stress, anxiety and depression are common feelings over the holiday period.

There are some practical things you can do to prevent stress at Christmas

• If someone close to you has recently died or you are unable to be with your family and friends, acknowledge your feelings. It’s normal to feel sadness and grief and you can’t force yourself to be happy just because it’s the holiday season.
• If you feel lonely or isolated, seek out community, religious or other social events. They can offer support and companionship. Volunteering your time to help others also is a good way to lift your spirits and broaden your friendships.
• Sometimes expectations around family gatherings may make you uncomfortable or stressed. As families change and grow, traditions and rituals often change as well. Choose a few to hold on to, and be open to creating new ones.
• Try to accept family members and friends as they are. Set aside grievances until a more appropriate time for discussion and be understanding if others get upset when something goes awry. People under stress often ‘self-medicate’ with alcohol, cigarettes and other drugs. Try to remember that drugs can’t solve problems or alleviate stress in the long term.
• Stick to a budget. Before you go gift and food shopping, decide how much money you can afford to spend and then stick to your budget. If you have a large circle of extended family or friends to buy gifts for you might be able to suggest a change in the way your family and friends give presents. For example:
  • Buy presents only for the children.
  • Have a Kris Kringle, where everyone draws a name out of a hat and buys a present only for that person.
  • Set a limit on the cost of presents for each person
• Plan ahead. Set aside specific days for shopping, baking, visiting friends and other activities. If you plan your menus and activities you may avoid the stress associated with last-minute or forgotten tasks.
• Learn to say no. Saying yes when you should say no can leave you feeling resentful and overwhelmed. Most friends and colleagues will understand if you can’t participate in every project or activity. If it’s not possible to say no when your boss asks you to work overtime, try to remove something else from your agenda to make up for the lost time.
• Don’t abandon healthy habits. Overindulgence can add to your stress and guilt. Try these suggestions:
  • Have a healthy snack before holiday parties so that you don’t go overboard on sweets, cheese or drinks.
  • Get plenty of sleep and regular exercise.
• Take time out for yourself. Spending just 15 minutes alone, without distractions, may refresh you enough to handle everything you need to do. Find something that reduces stress by clearing your mind, slowing your breathing and restoring inner calm. Some options may include:
  • Taking a walk at night and stargazing.
  • Listening to soothing music.
  • Getting a massage.
  • Reading a book.

Where to get help with separation and divorce at Christmas

If you need professional medical help, talk to your doctor or your local community health center

If you would like to talk to someone immediately, you can contact:

• Lifeline – a free crisis telephone counselling service www.lifeline.org.au or call 13 11 14
• Monoline Australia – a counselling service and resources for men in family crisis www.mensline.org.au or call 1300 78 99 78
• Family Relationships Online www.familyrelationships.gov.au
• Family Relationships Advice Line 1300 364 277

You can also access counselling and support services in your state and territory through the Relationships Australia website www.relationships.org.au or by calling 1300 364 277

If you feel anxious or depressed, information and resources are available at www.beyondblue.org.au

If you are a young person, or the parent or career of a young person with mental health problems, support is available at www.headspace.org.au

If you are caring for someone you may find useful information and resources at www.carersaustralia.com.au

If you, or someone you know is experiencing family violence you can contact 1800 RESPECT 24 hours a day 1800 737 732 or www.1800respect.org.au

If you need help with budgeting, you can find a financial counsellor in your local area by accessing

http://www.financialcounsellingaustralia.org.au/Corporate/Find-a-Counsellor

You can also talk to a phone financial counsellor from anywhere in Australia by ringing 1800 007 007 (minimum opening hours are 9.30 am – 4.30 pm Monday to Friday).

If you are having ongoing conflict or disagreements with your children, siblings, parents or extended family, you can seek the professional assistance of a counsellor or mediator, for example see:

There are many volunteering opportunities in Australia and the websites below can give you some ideas about the various ways you can broaden your social networks and contribute to your community:

http://govolunteer.com.au/

http://www.volunteeringaustralia.org/

If you live near others who are likely to feel isolated, lonely or vulnerable around Christmas, check in with them, and perhaps include them in your own festivities. For information and ideas about what other people do for their neighbors see the Neighbor day website, Australia’s annual celebration of community:

http://www.neighbourday.org/

Sources: http://www.mayoclinic.org/healthy-living/stress-management/in-depth/stress/art-20047544;