Common Mistakes To Avoid In Parenting Disputes

Parenting disputes in the Federal Circuit and Family Court of Australia (“FCFCOA”) are often marked by high conflict where parties to court proceedings are emotionally charged and overwhelmed. This is particularly the case where there is a significant disagreement between the parties regarding the parenting arrangements for the children, including where the children live and how much time they spend with each parent.

TheFamily Law Act 1975 (Cth)is the key legislation governing family law matters, and provides the rules and parameters for the Court’s decisions with respect tothe making of parenting orders. It is important to understand that pursuant to Section 60CA of the Family Law Act1975 (Cth), the Court’s paramount consideration is the best interests of the children. Unfortunately, parents often struggle to understand, interpret, or comply with legislative concepts that are central to parenting disputes. This may be for a variety of reasons, such as lack of knowledge, having no legal representation, or being emotionally driven and having tunnel vision. This may lead to a parent mistakenly compromising their case. For this reason, it is important for parties to parenting proceedings to understand the common mistakes to avoid in parenting disputes.

Focusing on Your Own Wants and Needs instead of the Child’s

Section 60CC of the Family Law Act 1975 (Cth) provides the framework for deciding what is in the child’s best interest. Subsection 2 provides six factors the Court will consider when determining what is the best interest of the child:

1. What arrangements promote safety for the child and each person who has care of the child.
2. Any views expressed by the child
3. The developmental, psychological, emotional and cultural needs of the child
4. The capacity of each person who has or is proposed to have parental responsibility for the child,
5. The benefit to the child of being able to have a relationship with the child’s parents and other significant persons, and
6. Anything else that is relevant to the particular circumstances of the child.
   In the recent case of Sigona&Sigona [2024] FedCFamC2F 963 (24 July 2024), the Court provided an indepth look at what is in a childs best interest, having regard factors under Section 60CC of the Family Law Act 1975 (Cth).The Court commented on each parents presentation of oral evidence, and how the father discussed how his proposed orders were in the best interests of the children.Arguments relating to proposed orders should strictly tie back to the childs best interests, as opposed to a parents own wants or needs. Some common mistakes include:

1. Making disparaging comments about the other parent, rather than being child focused.
2. Exposing the child to domestic violence perpetrated by a new partner
3. Seeking orders that are not child focused, but rather focus on hurting the other parent.
4. Making false allegations of abuse or neglect.
5. Refusing to allow the other parent to travel with the child to see family and significant persons where reasonable.
6. Seeking orders that intend to control the other parent, rather than being child focused.

Persistent Criticismof the Other Parent

Unfortunately, in high conflict situations, some parents can become hyper-fixated on criticising the other parent instead of remaining child focused. Yes, if you have valid concerns about the other parents ability to parent and have credible evidence to back it up, you should raise these concerns with the Court, however do so in a child focused way. Consider how you frame your argument: “The other parent is an alcoholic and I did all the parenting” OR “I have concerns about the child’s safety, health and welfare due to the other parent’s history of alchol abuse which they have not treated”. The former is more combative, the latter is more constructive and child focused.

Posting on Social Media

Posting to social media during family court proceedings can significantly (and negatively) impact your case. Firstly, Section 121 of the Family Law Act 1975 (Cth) prohibits the sharing of details of court proceedings which identify the parties involved. Secondly, negatively posting online about the other parent can be used as evidence against you. It does not matter if you have the other parent “blocked” or if you have your social media on private; we live in a screenshot culture and posting to social media is not worth risking your case.

Some case examples:

1. In Yabon &Yabon (No 4) [2020] FamCA 1001, the stepmother posted a video of the child subject to the proceedings, and wrote disparaging comments about the child’s mother and stepfather. The stepmother also wrote a complaint letter regarding a judicial decision to various persons and organisations. The Court referred the stepmother to the Australian Federal Police for contravention of Section 121.
2. In Suris&Suris [2021] FedCFamCF1, the father made several posts to social media about the court proccedings, including text messages from the children. The Court referred the father to the Australian Federal Police for contravention of Section 121.
3. In Hearst &Cagley (No 3) [2024] FedCFamC2F 1763 (2 December 2024), the father posted to his social media that he had “manipulated the court” into adjourning the parenting matter. The Mother includes this as evidence in her affidavit.

Saying You Have a Right to the Child

Parental responsibility is central to Courts decision making in parenting matters. Section 61B of the Family Law Act1975 (Cth) defines parental responsibility as “all duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

Talking about your “rights” rather than your responsibility to the child will be viewed negatively by the Court. Frame your argument in a manner that demonstrates you are child focused, and highlights your responsibility to the child and how you can provide for the care and welfare of the child in a healthy way.

Breaching Court Orders

Section 70NAC of the Family Law Act 1975 (Cth) provides that circumstances in which a person contravenes a child-related order. These include, where a person intentionally:

1. removes the child from the care of another person, or refuses or fails to deliver or return the child to another person in accordance with Court Orders
2. hinders or prevents another person from spending time with the child in accordance with the order
3. hinders or prevents another person from communicating with the child in accordance with the order
4. hinders or prevents the other person from discharging their parental responsibility in accordance with the order, or
5. fails to pay maintenance or prevent another person from paying maintenance in accordance with the order.

Some examples of common mistakes with respect to breaching the orders include withholding the child from the other parent with baseless claims of concerns regarding the other parent, or repeatedly missing the scheduled phone calls with repeated excuses such as “the child was asleep”, “we were driving”, or intentionally repeatedly making the child unavailable without reasonable grounds.

In some circumstances, penalties may apply. The penalties are listed in Division 13A of Part VII of the Family Law Act 1975 (Cth).

Final Reflections

Parenting proceedings can be emotionally taxing and extremely stressful. It can be difficult to present clear and child focused arguments where there is high conflict between the parties, however it is important to remember the role of the Court when making parenting orders. How you conduct yourself demonstrates to the Court the type of parent you are. A parent who is highly combative, acts with self-interest as opposed to being child focused, focuses on belittling the other parent, or shows a complete disregard for the Court will bring their credibility into question.

At Easton Legal, our experienced team of criminal defence lawyers, personal injury lawyers, and property lawyers provide expert legal advice and strong representation across a wide range of cases. We are committed to protecting your rights and achieving the best possible outcome for every client.