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Should the children spend time with both parents and how are the children’s voices heard?

Podcast Episode by Pearsons Lawyers
16 February 2021

(Transcription)

Leanne Abela:
Hello, I’m Leanne Abela.

Benita Crocker:
And I’m Benita Crocker.

Leanne Abela:
And today’s topic for the podcast is Should the Children Spend Time with Both Parents?

Benita Crocker:
And How are the Children’s Voices Heard?

Leanne Abela:
It’s a really good topic.

Benita Crocker:
It is a great topic because lots of people want to know, don’t they?

Leanne Abela:
They want to know that, and it’s really really at center of separation.

Benita Crocker:
Absolutely. So should children’s spend time with both parents, Leanne?

Leanne Abela:
Basic rule of thumb, absolutely.

Benita Crocker:
They should and it’s…

Leanne Abela:
That’s the least you owe your children, to have a great relationship with both parents.

Benita Crocker:
And in fact, it’s in the legislation that it’s the children’s right, not the parents right, the children’s right to have a significant relationship with both parties. So it’s the starting point for legislation, isn’t it?

Leanne Abela:
Definitely the starting point. And as the starting point, I always think, “Gosh, I wouldn’t want to be having them full-time without help from another parent.” I want to be able to sit in the bathtub and read a book, I want to be able to just have some me-time.

Benita Crocker:
Absolutely.

Leanne Abela:
That’s another selfish reason for that starting point, which is completely unrelated to the family law.

Benita Crocker:
Absolutely. So shout out to all the full-time single parents out there because it is really hard.

Benita Crocker:
It is hard. But there are times, aren’t there, Leanne, and we often see it because we’re dealing with people at the extreme end of things, that there are times when it’s not appropriate, is it?

Leanne Abela:
Not appropriate. Not appropriate, can’t work, and not in the children’s best interest.

Benita Crocker:
Especially when there’s some protective issues involved. There might be alcohol, drugs.

Leanne Abela:
Drugs, substance abuse.

Benita Crocker:
Mental health.

Leanne Abela:
Mental health. That’s probably the most common one more recently in the last decade.

Benita Crocker:
Yeah. And it’s mental health that has an impact on the parenting, that’s the main thing. Because there are lots of people out there with mental health issues and lots of primary carers out there with mental health issues so that in itself-

Leanne Abela:
… And that can work.

Leanne Abela:
You can still raise the children, you can still be a primary carer with mental health issues, but there are some extreme cases where there’s bipolar behavior, or suicidal tendencies, or a combination of mental health, suicidal tendencies, and alcohol and substance abuse.

Benita Crocker:
And where the kids are being exposed to a parent who has a lack of boundaries or isn’t able to control those sorts of things, and so they really sometimes become parentified, don’t they?

Leanne Abela:
Definitely.

Benita Crocker:
We talk about that concept where kids are taking responsibility for their parents and that’s…

Leanne Abela:
Yeah, they’re the grownups and kids…

Benita Crocker:
They’re the grownups. Yeah.

Leanne Abela:
Yeah.

Benita Crocker:
So if you are separating and you’ve got a partner who may have those sort of issues, you really do owe it to your kids to get some legal advice, I think, about what your options are because I was speaking to a lady the other day who had those sorts of issues on the other side, and I said, “Look…” She had a two year old, I said, “Your two year old can’t advocate, you’re the parent, and you’re the only one who can advocate really for that child. So you’ve got to stand up if you’ve got some protective issues. So yeah. You need to get some legal advice.”

Leanne Abela:
Yes. You definitely need to get some legal advice and you need to know that that option is available to you. That is that you don’t always have to hand over the child.

Benita Crocker:
No.

Leanne Abela:
Some people say, “But I thought that the other person had to see the kids. I thought that he or she had the right to see the kids. I didn’t think I could stop it.” Well, you can stop it.

Benita Crocker:
You can.

Leanne Abela:
And you might want to stop it long-term or you might want to stop it short-term.

Benita Crocker:
You might want to stop it while the person gets some help because-

Leanne Abela:
Gets some help.

Benita Crocker:
The best thing you can have is a high functioning person on the other side. For the kids, a high functioning parent. So what you want is the parent actually to do something about their issues, don’t you?

Leanne Abela:
Yeah. So getting that help might be, let’s think, getting a psychiatric report and then getting some treatment in place-

Benita Crocker:
Absolutely.

Leanne Abela:
And then monitoring that and coming back in six months or a year. Or getting some drug testing to see if the person is able to manage their substance abuse. You could do some hair follicle testing. You could do some urine testing.

Benita Crocker:
Yeah, absolutely.

Leanne Abela:
And monitor that and maybe have it supervised.

Benita Crocker:
Yeah, have supervised time.

Leanne Abela:
Have supervised time until that’s been managed.

Benita Crocker:
Yeah. I’ve had alcohol testing in the car where people have to… Or alcohol testing at home where people have to do that. And if the person is really trying to do the best thing and trying to get on with their life and those sort of issues are things that they’re trying to resolve, then we’ve got to give them a chance. That’s what…

Leanne Abela:
But without compromising the kids safety. That’s for sure.

Benita Crocker:
Without compromising the kids. Yeah.

Leanne Abela:
But there are, unfortunately, those cases, aren’t there, Benita, where there is no opportunity for one of the parents to spend time with the children. It is just not safe to do so-

Benita Crocker:
Absolutely.

Leanne Abela:
… And it may never be safe to do so.

Benita Crocker:
That’s right.

Leanne Abela:
Because of the combination of some of or all of those issues we’ve discussed.

Benita Crocker:
That’s right. But rule of thumb is if you’re separating and there’s none of those sorts of issues involved, the kids really do have a right to have a relationship with both parents.

Leanne Abela:
Yeah.

Benita Crocker:
Yeah.

Leanne Abela:
And so sometimes you might have a parent come in to you, to see your client come in to see. You then say, “Well, it is my word against theirs, so what do I do there? And can the kids say something about what they’ve seen? And my children definitely don’t want to see their mother or their father.” What do you do then?

Benita Crocker:
So the kids, and a lot of parents also try and gather evidence from the kids, which can put the kids in a really difficult situation. So if you’re getting…

Leanne Abela:
Not desirable.

Benita Crocker:
Not desirable.

Leanne Abela:
Not desirable.

Benita Crocker:
So if you’ve got kids who are right, because of course kids want to be able to play as both parents so you’ve got to be careful as a parent that you’re not unintentionally…

Leanne Abela:
Buying into that.

Benita Crocker:
Yeah, putting pressure on kids and they, “Oh, mom wants me to say this, or dad wants me to write this or whatever.”

Leanne Abela:
“And dad will get upset if I say this, mom will get upset if I not say…

Benita Crocker:
Yeah. So if you’re in a situation where you are in court, there’s a couple of things that the court will do to try and get the kids’ voices heard or their intentions about… What they’re feeling about the whole scenario, and there are a couple of things that they can do, can’t they, Leanne?

Leanne Abela:
Yep. They can see their own psychiatrist or therapist and a report can be gleaned from that person.

Benita Crocker:
Yeah.

Leanne Abela:
Or there can be a family report writer appointed. And that family report writer will interview every person in the family, including the children, and document what they’ve said, but also analyze whether they’ve been coached, whether that’s truly what they mean, having a feeling, explore all of that.

Benita Crocker:
And have a look at their observations, how they interact with mom and dad, or whoever the parents are, or grandparents, grandparents-

Leanne Abela:
That make applications as well.

Benita Crocker:
… and make applications as well and can be a part of family report.

Leanne Abela:
Or they could speak to an independent children’s lawyer.

Benita Crocker:
They could. So they could speak to an independent children’s lawyer. Although they can…

Leanne Abela:
That’s not common. No, definitely not common, but it can happen.

Benita Crocker:
It can happen. Yeah. So there are…

Leanne Abela:
But they don’t get to speak in court, do they, Benita?

Benita Crocker:
They don’t get to speak to a judge.

Leanne Abela:
As much as clients want them to. Clients will say, “But why can’t they just tell the judge?” Because that’s not the role of the judge.

Benita Crocker:
It isn’t, and the older they get, the more their wishes and their voices will be heard-

Leanne Abela:
Heard in some way.

Benita Crocker:
… In some way, and taken into account. The younger they are, primary school age and under, whilst the court’s going to have some regard to it, depending on their maturity, it’s not going to be the be all and end all.

Leanne Abela:
No because they’re the kids and the rest of the people in this case are the grownups and the adults, and they make the decisions.

Benita Crocker:
And often what you find in family reports, or another little report called an 11F is, more than anything, the kids really just want to get on with being kids, they want their parents to try and get on with the separation in a way that doesn’t involve the kids in conflict. And so, that’s what you often find is that the message that’s coming through with the reports is not so much how much time they want to spend with each parent, but really that they just want mom and dad to get on with it, or the parents to get on with it.

Leanne Abela:
And sometimes that’s the first time the parents get to read that and it hits home to them, doesn’t it?

Benita Crocker:
Yeah, that’s right. So we can talk to clients and parents about-

Leanne Abela:
Definitely.

Benita Crocker:
… That sort of stuff, can’t we, Leanne?

Leanne Abela:
All of that, we can answer all your questions, we can work you through all that and guide you.

Benita Crocker:
And certainly if you are in court or if you’re going to court and there is a family report or another report that’s ordered, it’s really crucial that you come and get some advice about-

Leanne Abela:
What to expect.

Benita Crocker:
… How you approach that, what to expect, the do’s and don’ts because that’s a significant document.

Leanne Abela:
Significant document.

Benita Crocker:
Yeah.

Leanne Abela:
So if you do want your free appointment, contact Pearsons Lawyers on 1-300-699-688 to book your appointment. That’s all for now. Thanks, that’s it. Thank you.

Benita Crocker:
Thanks. Thanks, Leanne.

Pearsons Family Lawyers

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