I’m not stalking…I just want to see my kids!

Separation and divorce can light the fuse of conflict, skyrocketing into a crescendo of fireworks with explosive rants, flaring tempers and colourful language!

Conflict can be seen as a powder keg, ready to explode with unknown consequences and impact on the family. For this reason, the Family Law Act 1975 highlights the definition of family violence outlined below which can lead to a violence order to be initiated to keep warring parties apart to lower the risk of escalating violence;

FAMILY LAW ACT 1975 - SECT 4AB

Definition of family violence;

 (1)  For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

 (2)  Examples of behaviour that may constitute family violence include (but are not limited to):

 (a)  an assault; or

 (b)  a sexual assault or other sexually abusive behaviour; or

 (c)  stalking; or

 (d)  repeated derogatory taunts; or

 (e)  intentionally damaging or destroying property; or

 (f)  intentionally causing death or injury to an animal; or

 (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

 (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

 (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

 (j)  unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

 (3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

 (4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

 (a)  overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

 (b)  seeing or hearing an assault of a member of the child's family by another member of the child's family; or

 (c)  comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

 (d)  cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

 (e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

We all know that separation can be a time of high conflict, especially where access to the children is restricted. Common events that can be seen as family violence are;

Constantly calling or texting to gain time with the children on the phone or via face-to-face contact. This can be seen as harassment, where one parent may feel bombarded with requests or demands, whilst the non-resident parent feels like they are being isolated from their children for extended periods of time with no connection to their children 2(i).

Wanting a glimpse or an opportunity to talk to the children, the non-resident parent may try to gain access to the children by going to the family home, driving by to see if they are home or going to the school or local shops on the off chance to see their children. This can be seen as stalking (2c) as the resident parent feels like the other parent is everywhere they turn, like they are being followed like a character in a thriller movie. Conversely, the non-resident parent feels cut adrift from their daily lives with their children and cannot stand the thought of not seeing their children as each day becomes weeks and each week becomes months. This constitutes family violence 2(j) where they feel they and the children are being unlawfully deprived of their liberty to have a relationship, as the children are cutoff from the non-resident parent and extended family.

Verbal arguments that may arise when trying to negotiate parenting time with the children may escalate into derogatory comments 2(d), yelling, screaming, and shouting at each other which may end up in threats or physical assault 2(a). This could lead to the children witnessing family violence through seeing or hearing it (3) or be present when the police or ambulance arrive at the scene (4e)

So, when access to the children is restricted, don’t step toward the conflict and risk a violence order, calmly and quietly step away to develop your strategy to gain access to your children.

Refrain from negotiating with your ex directly if it is high conflict communication!

There are key ways to pursue access through professional channels to avoid conflict to reduce the risk of damaging your opportunity to see your children –

1. Have a legal consultation ONLY to gain advice on what you could expect for parenting arrangements based on your pre-separation parenting, the age of the children, your living arrangements. Your situation is unique, a lawyer will be able to advise what you might be able to achieve as an outcome. You do NOT need to pay a retainer at this point.

2. Initiate parenting mediation with a family dispute resolution practitioner to negotiate with your ex on parenting arrangements. If your children are school age, you may want to do child informed mediation whereby the child consultant will interview each parent and each child separately to make their recommendations in the parenting mediation session. If the children are not attending school, then parenting mediation with a family dispute resolution practitioner will enable you as parents to negotiate what is in the best needs of the children.

3. If you do not reach agreement or your ex refuses to attend parenting mediation then you will be issued with a s60i certificate to initiate court proceedings.

It is devastating to be denied access to your children, and NEVER should occur where there are no safety issues. Children have a right to a meaningful relationship with both parents.

To the parents who are being denied access to their children, the pain and suffering for both you and your children is palpable. Don’t let emotions of anger, frustration and helplessness fuel conflict. Reach out for help from professionals whilst staying calm, respectful and hopeful. This will be the pathway that will enable you to gain time with your children, rather than a combative pathway which will delay you seeing your children.

Initiate parenting mediation to take back your power Mediation | The Divorce Centre

Author – Cheryl Duffy, Divorce Coach, Conflict Coach, Family Dispute Resolution Practitioner, NMAS Mediator and Parenting Coordinator

www.thedivorcecentre,com.au