Top 10 mistakes by Fathers in Family Court

By: Ash Patil | Posted: 05th May 2010

In 2006, the Australian government (Liberal/National Coalition) and the opposition (Labor party) unanimously passed the Shared Parental amendments to the Family Law act, which has since become internationally recognised as ground-breaking, child-focussed laws in line with modern day societal values.



Whereas the previous Family Law act promoted an adversarial, winner-takes-all approach to child custody decisions, denying the majority of children of separated families a meaningful relationship with their father, the 2006 amendments promoted shared parenting, when practical and in the absence of genuine fears of abuse, as an arrangement that was to be considered in the best interests of the children, in line with credible research on this topic.

Recently updated Family Court outcomes have however been very disappointing, showing that despite the 2006 amendments, only 15% of fathers have been able to secure shared parenting through the Courts.

It seems that a change in law has not in itself overcome the overwhelming bias and discrimination against fathers in Australia, where resistance is still in abundance in the other non-accountable instruments of family law, including the legal fraternity, counsellors, psychologists, police, domestic violence services and legal aid institutions.

Having said that, there has still been a noticeable upswing in shared parenting arrangements, from 3% pre-2006 to 15% post-2006, and this trend may continue upwards as the resistance slowly begins to wane.

Some legal experts have however claimed that simple mistakes made in common by both mothers and fathers after separation have been unfairly used by these instruments of family law primarily against fathers, to deny them meaningful contact with their children after separation.

Given the nature of this entrenched, anti-father discrimination in these other organisations is very difficult to address, but may hopefully diminish over time, Fathers4Equality have decided that it would be more immediately helpful to provide a list of common mistakes made by fathers, and encourage fathers to avoid making such mistakes in the first place. In this way, the discrimination against fatherhood in Australia may be bypassed to an extent, when dealing with Shared Parenting matters, to the very real advantage of Australia's children.





Top 10 common mistakes to be avoided by Fathers seeking Shared Parenting in Australia





1. Using the affidavit for CHARACTER ASSASSINATION

Prior to 2006, the affidavit was primarily used as a tool for character assassination of the other parent, because the goal was to remove one parent from the equation in order to gain sole custody.

With the dawning of the 2006 Shared Parenting laws, the tactical purpose of the affidavit, at least where most fathers are concerned, has fundamentally changed. Rather than a tool to convince the Court that it is dangerous to leave the child/ren in the care of the Mother, now the emphasis is to highlight the benefits to the children of Shared Parenting.

This by definition involves an emphasis on the many positive qualities and circumstances of both parents.

Most mothers finding themselves in Court of course do not seek Shared parenting arrangements, and will still be demanding sole custody, so be prepared for an affidavit from the mother that will be highly critical of you. Such affidavits however, if not credible, will reflect poorly on the mother.

What is important however is that you do not feel distressed at the criticism coming your way, enough so to make you respond in kind. Just continue playing a straight bat, be honest and fair, and the criticisms will fall by the wayside.

Even if some of the criticisms are fair, the best way to handle it is to show acceptance and remorse for your error, and show a willingness to address the issue. This could be through counselling, medication or other measures. Being honest and up front about your failings as a human being would go down better with the Court, than straight out denials, which would give the Court reason to believe that issues will continue to not be resolved given that parties cannot even agree on what occurred.



2. REFUSING to acknowledge the positive parental traits of the other parent

Often, separating parents have distinct differences in parenting styles, and at other times they feel ongoing resentment to each other for perceived past indiscretions.

These views and feelings can interfere with one parent's assessment of the parent's parenting abilities.

In truth however, most parents love their children, and have many positive parental qualities.

When writing your affidavit in preparation for Court, or if asked by a lawyer or a judicial officer on the other parents positive parental qualities, you must be brutally honest with yourself, even if this is painful to do, and fairly articulate the other parent's positive parental qualities. By only focussing on what you perceive to be the other parents negative parental qualities, you will only encourage the Court to see you as bitter, irrational and focussed solely on your feelings, at the expense of your child's best welfare.



3. REFUSING to attend post-separation parenting course

In this day and age, many fathers are well equipped to parent a child and run a household, being that most fathers engage in such responsibilities from the outset.

For this reason, some fathers may refuse to attend post-separation parenting courses, fearing that this could imply that they were never engaged in the parenting of the children in the past.

These courses however are designed not to help you cook, clean or manage your child's time, but to manage your common responsibilities with the other parent.

Attending such courses is seen by the Courts as an indication of your willingness to make Shared Parenting work.



4. Sending of ACRIMONIOUS, SPITEFUL or THREATENING Emails & SMS messages

In the heat of separation, many people say things that they don't mean. It goes without saying that you MUST REFRAIN from making hurtful or threatening comments during separation, as these could cause genuine fear in the other parent, regardless of your true intent. Although some obscure comments may be ignored in some instances, written messages with sinister themes will invariably come back to haunt you.

NEVER EVER send acrimonious, spiteful, threatening or argumentative emails or SMS texts to the other parent, regardless of how justified you may think they may be.

Emails and SMS messages are now one of the most common forms of evidence tabled in the Family Court, and by their very nature are often indisputable. They are effectively used in Court as convincing proof that shared parenting will not work in your case, because of an underlying inability of the parents to co-operate.



5. RESPONDING to hateful, accusatory or disrespectful comments, emails or SMS text messages from the other parent

NEVER EVER buy into arguments from the other parent. These arguments have no purpose but to ferment more argument, so any emotional response by you, typically in your defence, will simply encourage more of the same.

Any evidence of such disputes will diminish your prospects of getting Shared Care, so you have a concrete reason to ignore these comments.

Always remember the mantra that "silence is golden", and if you care enough about your child's final parenting arrangements, you will simply refuse to get involved in such counter-productive arguments. Having said that, when a response is required, a constructive, logical, non-emotional response is the order of the day.

A good tool to assist you is to always remind yourself that "someone has remain the adult during times of crises, for your child's sake."



6. INVOLVING the children in the child custody dispute

Children suffer when their parents separate, and they suffer even more when they are involved directly in the dispute.

Never ever criticise the other parent to the child. Never attempt to alienate the child from the other parent. Parental alienation happens all too often, given that children are too young to make such decisions themselves.

Your obligation to your child is to promote the best possible relationship for that child with you and the other parent, regardless of your personal views of the other parent. Anything less than this is another form of child abuse.



7. Making FALSE & RECKLESS allegations of Child Abuse

Never make unfounded allegations of child abuse. Child protection services and the Family Law Courts are overwhelmed with false allegations of child abuse, and such unfounded allegations can reflect poorly on the alleging parent.

Some family law experts like Professor Patrick Parkinson believe that parents in the midst of separation can develop irrational fears of child abuse as a result of the stresses of the child custody dispute, not as a result of any rationally determined fear. So reflect carefully on your feelings at this point in time to determine whether your fears are genuine, or a result of the stress you are feeling.



8. DEMANDING a FIXED 50:50 arrangement simply because it is available

Although the Court must consider the benefits of an equal time arrangement between the parents, do not use this as an excuse to demand 50:50 time, without considering many other important factors.

For example, 50:50 may not be practical, given your work commitments and other commitments. Keep in mind that 50:50 parenting will involve a significant amount of your personal time, so you must balance this off against all the other factors you will be considering.

A good approach is to try to determine what may be the optimal time sharing arrangement for you and your child, not the ideal time sharing arrangement.

Many fathers have accepted Shared Parenting arrangements, on average involving 4 to 5 days/nights per fortnight, as optimal in this regard. Keep in mind that your goal is to ensure a meaningful relationship with your child that stands the test of time. This may or may not require 50:50.



9. NEVER willing to compromise

Negotiations over Child Custody should be treated like any other type of negotiations. All negotiations work best when both parties are flexible and open to compromise.

As a father involved in a Child Custody disagreement, your first official attempt to secure a Child Custody arrangement would be through mediation at a Family Relationship Centre.

Some Counsellors and Family Advisors have lamented that many parents attend mediation either with fixed and unmovable demands, or others come to mediation unsure about what they seek. In both circumstances, informed compromise becomes impossible.

Another issue for parents that go to mediation unprepared is that they often feel pressured and bullied into agreeing to an arrangement that on reflection is not what they believe is optimal or appropriate. The pressure applied on a parent during mediation, especially the parent seen to be least demanding, cannot be under-estimated.

Preparation is the keyword here. Work out what you believe is the optimal arrangement for you and your child, and then determine various arrangements that would still provide the same outcome.

Be open-minded during mediation. Your ex will be required to explain her resistance, and you may be able to address her concerns without reducing your overall time with your child. Remember that compromise need not mean accepting less time with your child.



10. ALWAYS KEEP your focus on what is best for your children, and NOT on your feelings

This is a lot harder than it sounds, especially given the tremendous amount of stress you may be under, and the likelihood that you may be experiencing depression.



For your children's sake, always scrutinise and question your motivation when involved in a Child Custody dispute, no matter how painful to you.



**Despite the fact that this Top 10 list refers to fathers directly, it can be applied just as equally to mothers in the same situation. The reference to fathers has been made given the shear number of fathers that are denied meaningful contact with their children, but given the changing nature of the family, more and more women are finding themselves in similar circumstances, to the clear detriment of the children.

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