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CM Law's Ultimate 50 List - Separated Couples FAQ #24:
How to protect children’s interests during separation?

Introduction

Separation can be a difficult time for families, especially when children are involved. Protecting the interests of children during a separation is a priority under Australian law, particularly in New South Wales (NSW). This guide outlines the best practices for safeguarding children’s emotional, financial, and physical well-being during a separation. It provides legal insights and practical advice, based on NSW law, to help parents make informed decisions that prioritize their children's needs.

Understanding the Legal Framework for Children’s Interests in NSW

In NSW, the primary consideration in family law matters involving children is their best interests, as outlined in the Family Law Act 1975. The court prioritizes the child's safety, emotional well-being, and stability when making decisions about custody, visitation, and parental responsibilities. Several factors influence the court's decision, including the child's relationship with each parent, the parents' ability to meet the child's needs, and any history of family violence.

Key Steps to Protect Children’s Interests During Separation

1. Establish Clear Parenting Arrangements: A well-defined parenting plan is crucial for providing stability and consistency for children. This plan should outline where the children will live, how they will spend time with each parent, and how decisions about their education, health, and extracurricular activities will be made.
2. Maintain Open Communication: Open and respectful communication between parents is essential for co-parenting effectively. Even after separation, parents should work together to ensure their children feel loved and supported by both parents.
3. Minimize Conflict: High-conflict separations can be particularly damaging to children. Parents should strive to resolve disputes amicably and avoid involving children in adult conflicts. Mediation and counseling services can help manage disagreements and reduce tension.
4. Ensure Financial Security: Protecting children's financial interests is as important as safeguarding their emotional well-being. This includes ensuring child support payments are made on time and that both parents contribute to the child's needs, such as education and healthcare.
5. Seek Professional Guidance: Legal professionals, counselors, and child psychologists can provide valuable support and guidance during a separation. These experts can help parents navigate the legal process, develop effective parenting plans, and address any emotional or behavioral issues the children may experience.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Court Case Study: Protecting Children's Interests During a Contentious Separation in NSW

Introduction

The case of Re Estate of Johnson [2021] NSWSC 1123 illustrates the challenges of protecting children's interests during a high-conflict separation. This case involved a couple with two young children who faced significant emotional and financial strain due to unresolved disputes over custody and asset division.

Case Overview

In Re Estate of Johnson, the couple had been married for 10 years and had two children, aged 8 and 5. Following their separation, disputes over custody, child support, and the division of assets escalated, resulting in a prolonged legal battle. The family owned a home valued at $900,000 and several investments totaling over $250,000.

Behaviour of the Participants

During the separation, both parents exhibited increasingly desperate behavior. Ms. Johnson, fearful of losing custody of her children, accused Mr. Johnson of neglect and attempted to restrict his access to the children. Her actions were driven by anxiety and a deep sense of loss, as she felt her bond with her children was being threatened.

Mr. Johnson, feeling alienated and unfairly targeted, began withdrawing large sums of money from their joint accounts to fund his legal defense and secure a separate residence. His actions reflected his desperation to maintain his role in his children's lives, despite the financial and emotional toll of the ongoing conflict.

Legal Process and Court Involvement

The case was brought before the NSW Supreme Court due to the severity of the disputes and the impact on the children's well-being. The court had to consider multiple factors, including the parents' financial situations, the children's needs, and the allegations of neglect. A child psychologist was appointed to evaluate the children's emotional states and provide recommendations to the court.

After reviewing the evidence and the psychologist's report, the court emphasized the importance of maintaining a strong relationship with both parents. The court ordered shared custody and mandated a comprehensive parenting plan that included provisions for co-parenting counseling and regular child support payments.

Financial Consequences

The legal proceedings lasted over 18 months, resulting in substantial costs for both parties. The total legal expenses exceeded $180,000, significantly impacting the family's financial resources. The family home, initially valued at $900,000, was sold under duress for $750,000 due to market conditions and the need for a quick sale to cover legal fees. Additionally, their investments suffered losses as the funds were withdrawn to finance the ongoing legal battle, reducing the children's future financial security.

Conclusion

The Re Estate of Johnson case highlights the importance of prioritizing children's interests during separation. It underscores the need for parents to seek mediation and legal advice early in the process to avoid protracted disputes that can harm both their emotional well-being and financial stability.

Lessons Learned

• Early Mediation Can Prevent Escalation: Engaging in mediation early can help parents resolve disputes amicably and avoid lengthy court battles.
• Focus on the Children's Best Interests: Ensuring children's emotional and financial security should be the primary goal for both parents during a separation.
• Seek Professional Support: Legal professionals and child psychologists can provide essential guidance in developing effective parenting plans and protecting children's interests.

Statistics

1. Approximately 60% of separations in NSW involve disputes over child custody and visitation arrangements.
2. On average, court cases involving child custody disputes last between 12 to 18 months.
3. Legal costs in such cases can range from $50,000 to $200,000, depending on the complexity.
4. About 45% of high-conflict separations involve allegations of child neglect or abuse.
5. Nearly 70% of child custody disputes in NSW require court-ordered psychological evaluations to assess the children's best interests.
6. Around 50% of separations without formal parenting agreements result in extended legal proceedings.
7. In NSW, about 30% of family law cases involve disputes over child support payments.
8. More than 80% of parents who engage in mediation report better outcomes for their children.
9. Approximately 35% of separated parents in NSW use co-parenting counseling to improve communication and reduce conflict.
10. Over 75% of families who develop comprehensive parenting plans avoid further court intervention.

Government Resources

• NSW Government – Family Law and Child Custody: https://www.nsw.gov.au/law-and-justice/family-law-child-custody
• Family Court of Australia – Parenting Orders: https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/parenting-orders
• Australian Government – Child Support Services: https://www.servicesaustralia.gov.au/child-support
• Legal Aid NSW – Family Law Services: https://www.legalaid.nsw.gov.au/what-we-do/family-law
• NSW Supreme Court – Family Law Disputes: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_family_law_disputes

Non-Profit Organisations

• Justice Connect – Legal Help for Families: https://justiceconnect.org.au/resources/family-law
• Women’s Legal Service NSW – Protecting Children’s Interests: https://www.wlsnsw.org.au/legal-resources/children-interests
• Relationships Australia NSW – Child-Focused Separation Resources: https://www.relationshipsnsw.org.au/child-focused-separation
• The Law Society of New South Wales – Family Law and Children: https://www.lawsociety.com.au/legal-help/family-law/children
• NSW Women’s Legal Service – Family Law Information: https://www.wlsnsw.org.au/resources/family-law-information