Karen Haga Lawyers

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Helping children deal with divorce

For parents, helping your children deal with divorce is a priority.

Even when couples separate, both parties are still parents. In almost every case, both want to support and help the children, but it doesn’t always work out that way.

We have written separately about where children live and the time they spend with each parent. In this article we cover some of the other key points about children in a divorce.

How you behave towards each other matters

Many people simply don't understand how their own behaviour affects children. We discuss this with most clients and make suggestions about how to behave.

In an ideal situation, we see parents before they separate. We can then advise on how to tell the children they are separating. In some cases, we recommend a child psychologist to assist.

Unfortunately, many parents have separated before they come to us. It’s a hard time and they are often unaware of little things which make a difference.

Where is ‘home’?

For example, the parent who moves out may stop calling the family home ‘home’. Instead they say ‘your mother’s place’ or use the address. But from the children’s point of view, their home is still their home. Calling it something else reduces their sense of security.

Handling changeovers

Changeovers are another difficult time. It’s easy to explain that children don’t want to see their parents arguing at changeover time. But the parents often think it’s OK not to speak to each other at all. Really, what the kids needs is to see their parents being civil to each other.

Consider getting help

There are courses to help with parenting after separation. We often recommend these to our clients. The courses help you understand your children’s emotions after you separate.

Even if you don’t need a course for yourself, it can help you deal with a difficult ex-partner. Perhaps your ex is behaving in a way which may harm the children. A course can give you pointers on how to behave to minimise that damage.

What about schooling disputes?

The Family Law Act was amended about 10 years ago, to say specifically that parents have to agree about education and the choice of school.

Before that, schooling decisions were left to the primary carer of the children. Since the Act changed, disputes are becoming more common.

The issue is often private school versus public school. Religion may also be a factor, which can be very difficult. We delve carefully into how the child has been raised, what parents believe and so on. Each case is different.  

Occasionally, we see clients with completely unrealistic expectations, like a child going to school at a midpoint between the two homes. But the court recognises that school is about more than where your children go to school. It's about community. School is where they establish friends and do activities. If that’s far from both parents’ homes, this children miss out on that community whoever they are with.

Children have to go to school. In the end, if there’s no agreement, they go to the school that is in their local catchment zone – or if the matter goes to court, the school that the court orders they attend.

At what age do children get input in who they live with or where they go to school?

There’s no specific age stated in the Family Law Act. The court always has to take into account a child's wishes, and it's up to the court to then determine what weight should be placed on those wishes.

It’s very rare for a child to have input into where they go to primary school. When they're looking at high school or in year six, that may be different.

When a child is 12 or 13, a judge will listen more closely to what the child wants, but he or she still has to balance many other factors.

What happens if one parent wants to move away?

This is one of the most difficult issues to advise clients about. We describe it as Russian roulette.

The court always has to act in the best interests of a child, but it's very difficult sometimes to work out what that means.

The age of the children is relevant. If they are very young, there is a smaller chance that a parent will be allowed to move them any significant distance. The court is concerned about whether the child can maintain a relationship with the parent whom they will be distanced from.

Sometimes there are extenuating circumstances.

For example, one mother is confident and capable. She earns a good income and can support herself. Another mother is anxious and wants to move close to family for support, or can't afford to live in Sydney. The first one is less likely to get permission to move away.

The reasoning is that the anxious mother will be affected by having to stay where she doesn’t want to. That emotional impact affects her ability to parent the child, and the child suffers as a result. It’s not about the mother herself. It’s about her ability to parent the children into the future.

All these factors have to be considered and presented clearly for the court to make a decision.

Note that it is much easier to move away if you are the non-residential parent. However, you risk losing your relationship with your kids