Custody disputes during divorce are not uncommon. Although we live in a country with a family law system that encourages mediation as the first place to start, many couples then move onto the courts to have their disputes resolved or decided upon when mediation does not work for them. When issues are not resolved quickly there is a serious impact on the families involved as well as the system which aims to support them.
Parent Management Hearings – a New Way Forward for Custody Disputes
Custody disputes may ultimately end up in court, which places more stress on the family law courts. To help with the immediate problem of the backlog in the Family Court, social workers, family counsellors and lawyers will be granted new powers to umpire custody disputes. Initially, the program will roll out in Sydney, where families will be the first to use the federal government’s new Parent Management Hearings (PMH). This will be set up in Parramatta within a year. It is much needed to help resolve custody disputes more quickly than the courts can because of delays in an overloaded system. Many cases are ones which cannot be dealt with quickly because they are complex and cannot be steamrolled into settlement. Especially where children are involved, much care and thoughtful consideration is needed.
Help in an Overloaded System
The Parent Management Hearings are like an intermediary step between mediation and going to court. Attorney-General George Brandis said the PMH would deal with “simpler disputes quickly and out of court’’. This will help with families being able to move on more quickly with having their parenting arrangements or property settlements determined, as well as alleviate the Family Court load. At the moment a typical case in the Family Court or Federal Circuit Court (FCC) drags on for longer than a year, while 13 per cent of complex Family Court cases drag on for more than 2 years. Currently, each FCC judge in Sydney takes an average of 317 new cases each year, with an average time of 12 months to make a ruling.
After the case has gone to trial, many couples (about 50 per cent) then have to wait a further three months for a judge to hand down a decision. Of these, there were fifty-two couples who had to wait more than six months for their judgment.
Under the new PMH system, the Governor-General will appoint a panel of family lawyers, psychologists, social workers and child development experts to help couples hammer out child custody arrangements without going to court. Parents will have to represent themselves. The PMH experts will make their own inquiries and gather evidence independently, before deciding what is in the children’s best interests. They will also have the power to refer parents to mental health services or financial counselling.
In discussing this new PMH system, the Governor-General said, “One of the reasons that there has been delay in the family system is because there are too many matters that are not resolved at the earliest possible stage.’’ This is particularly detrimental to children who are then subject to parents who often are not actively trying to reduce the amount of conflict in the divorce process. Some parents use children as pawns, not realising the adverse and long-term effect that this kind of manipulative behaviour has on such vulnerable and sensitive little people. Sadly, some just don’t care and wield words and destructive behaviours with callous intent.
Low Conflict Divorce is Best for Children
Long, drawn out custody disputes are not helpful for any of the parties concerned. Where possible it is so much better for couples to sort out their parenting arrangements and property settlements through mediation which is aimed at empowering each party to negotiate fairly and within a reasonable frame of time.
Victoria Scott, a family based mediator in the UK says that the mediation process is preferable to court because, “It’s less confrontational. Courts are, by nature, adversarial. And because they are not very enabling or empowering places either, decisions arrived at after mediation can be more sustainable: the parties have ownership of them, they’ve helped make them. They’re not court orders, handed down from on high. That’s a big difference.” Mediation, Scott says, “provides long-term solutions, especially for children. Couples sort things out for themselves, within the framework of the law, and the outcomes reflect what they need and want. The whole process is somehow more respectful, and also often more amicable.”
The Family Court of Australia supplies a fact sheet on its website about the effects of conflict on children. Amongst some other helpful information it says:
Research has found that following separation and divorce, children are twice as likely to have emotional, social, behavioural and academic problems compared to children from families that are still together. However, this may not be the case in all families.
The increased risk of poor adjustment in children may partly be due to high conflict and other problems in the family before the separation. This may affect the child/ren’s ability to cope with the separation.
High levels of conflict and ill feeling between parents following separation has also been found to have a negative impact on children’s adjustment following their parents’ separation.
The type of post-separation conflict that has been found to have the worst effect on children is that which occurs when parents use children to express their anger and hostility. Children who are placed in the middle of their parents’ dispute (by either parent) are more likely to be angry, stressed, depressed or anxious, and have poorer relationships with their parents than children who are not used in this way.
Whilst it can be difficult to come to a resolution about custody disputes during divorce, those who are most vulnerable need to be at the forefront of our thinking and our doing. The federal government’s new Parent Management Hearings system will help to keep more cases out of court which will not only alleviate the overloading of a struggling system but also alleviate some of the conflict that is unavoidable in a place that is adversarial by nature. Separating couples will have an opportunity to move through the divorce process in a more timely fashion that will be more beneficial to them and their children.
At Divorce Lawyers Brisbane we aim for your to have a divorce process that is as conflict low as is possible. We are experienced in divorce property settlements and negotiating child custody. When helping our clients to finalise parenting arrangements we always focus on the best interests of the children. Our experienced family lawyers offer a free, 10-minute phone consultation. Please contact us today!