Yesterday, hours after we learned Australia had voted in favour of same sex marriage, I was interviewed on Radio Live Drive about a peculiar anomaly in the law which means same sex couples who have already married in New Zealand but call Australia home have no way of obtaining a divorce.
It’s an unusual day in the office when, as a divorce lawyer, I must tell a client he or she cannot divorce. That is exactly the scenario I have found myself in on several occasions since New Zealand passed its same sex marriage legislation. New Zealand has developed a lucrative nuptials market with overseas same sex couples, many from Australia, coming to our shores to marry. Last year, 471 same sex marriages in New Zealand were between overseas residents and over 330 of those were Australians crossing the ditch to get hitched. Furthermore, some New Zealanders who enter same sex marriages here inevitably end up doing as many New Zealanders do and move to Australia to establish new lives there. For many starry-eyed newlyweds, the thought of wedded bliss turning sour is not something that is dwelled on. However, for those in same sex relationships, divorce might not be an option in the future should they not reside in New Zealand and “till death do us part” will really mean just that.
So, how is it that a same sex couple living in Australia can marry in New Zealand but not divorce? The issue arises for two reasons – the circumstances in which you can apply for a divorce in New Zealand and the lack of legal recognition of same sex marriages across the Tasman.
To apply for a dissolution of marriage (or divorce) in New Zealand, one of the married parties needs to be domiciled here. If both parties are domiciled overseas, then a dissolution cannot be sought in New Zealand even if the marriage occurred here. Domicile shouldn’t be confused with where you live at any given moment. It has a specific legal meaning but generally speaking, requires a level of intention and long term commitment to the country of domicile.
If a same sex couple cannot seek a divorce in New Zealand because they are domiciled in Australia, surely the solution is that they apply in Australia for a divorce. This is exactly what a heterosexual married couple faced with the same circumstances could do. However, not only does Australia not allow same sex marriages to occur there, it specifically outlaws the legal recognition of same sex marriages that have occurred overseas. Australia’s Marriage Act 1961 specifically states that unions solemnised in a foreign country between members of the same sex must not be recognised as a marriage in Australia. Therefore, a divorce cannot occur in Australia because the very marriage being dissolved is not legally recognised in the first place. Essentially, in the eyes of Australian law, there is no marriage to dissolve.
If you are thinking this is all rather unfair, the United Nations Human Rights Committee agrees with you. On 3 August 2017, it found that Australia’s denial of divorce to a citizen who had entered a same sex marriage in Canada was discriminatory and violated the International Covenant on Civil and Political Rights which states that “all persons should be equal before the law and are entitled without discrimination to the equal protection of the law”. The Committee found that Australia is treating overseas same sex marriages less favourably than other types of marriage. Advocates of same sex marriage in Australia have argued the decision creates an obligation on Australia to grant marriage equality as it confirms Australia has an obligation to treat same sex couples equally and give them equal protection of the law.
Some may ask why having the ability to divorce matters if the marriage is not recognised at all in law. Putting aside the significant human rights issue as confirmed by the UN Human Rights Committee, the right to divorce has practical implications. Divorcing frees you to marry another, should you choose to do so. We all live, love and occasionally make a mess of things. For heterosexual couples, they can choose to try again and remarry. By denying same sex couples the right to divorce, they essentially are denied the right to remarry after one marriage ends. Should someone simply ignore his or her earlier same sex marriage and marry again, they would be committing bigamy under New Zealand law.
If Australians do for marriage equality reform as their Prime Minister urged yesterday and simply “get on with it”, this situation will be promptly rectified. In that case, some of those couples who first rushed to New Zealand to be among the first to marry here under our same sex marriage laws may find themselves being some of the first rushing to the apply for same sex divorces in Australia. But, what will happen in the seemingly unlikely event Australia doesn’t change its law? Do we in New Zealand, having marketed ourselves as a destination for same sex couples wanting to marry, have an obligation to warn of the potential legal quagmire these couples could be sinking into? One option that New Zealand may have to consider is an amendment to its law to allow couples in this situation to apply for divorces here of their New Zealand marriages and, in doing so, grant complete marriage equality
In the last few weeks, I have focused my blogs on how you can get free legal advice and assistance. I have done this because every week, Family Law Results receives more and more calls from people who are financially stretched and can’t afford a lawyer.
I am wrapping this theme up this week by writing about a free service that can help equip you for co-parenting your children after a separation – the Parenting through Separation programme (PTS). Parenting through Separation doesn’t provide legal advice or representation. However, as a lawyer I have seen it assist my clients to resolve their parenting dispute. The Course can help you:
- understand your children’s needs;
- understand how separation effects children;
- work out how to make the best arrangements for your children;
- provide you with practical tips about what you can do to help your children after a separation;
- provide you with tools for communicating with the other parent.
Unless you have an urgent issue around the safety of you or your children, PTS should be the first call you make when you are trying to sort out the care of your children after a separation. The Family Court will not accept from you a non-urgent application about parenting arrangements unless you can show it your certificate to show you have completed Parenting Through Separation.
PTS is free. The course takes four hours, either in 1 session or split across 2 sessions. Don’t worry – you won’t be sitting in the course with your ex-partner. If your ex-partner also chooses to do the course, you will each be scheduled to attend separate courses.
There are a number of organisations throughout New Zealand that provide the PTS course, including Plunket and Barnardos. You can find other providers here.
Parenting through Separation has been running for several years now. I have had hundreds of clients attend the courses. I always ask them what they thought of the course. I have not had a single negative piece of feedback from my clients about it. The course isn’t just for people who have just separated. I have had clients who are well past their initial separation but who felt they were stuck in some negative co-parenting habits attend the course. As a mediator, I have also had mediation parties attend the course before coming to mediation. They also reported back positively about it.
Got a question about a parenting issue? Give Family Law Results a call on (09) 297 2010.
Getting Free If cash is tight and you want to try to resolve an issue about parenting or guardianship while staying out of Court, then Family Dispute Resolution (FDR) may be right for you. FDR is a mediation service. An impartial, trained mediator will guide you and the other party towards reaching agreement about issues to do with your children. If you are eligible, you can receive this service free.
Unless you have an urgent issue, attempting FDR will be necessary because you have to show you have completed FDR and Parenting through Separation before you can make an application to the Family Court for a parenting or guardianship order.
Whether you are eligible to receive free Family Dispute Resolution will depend on:
- Your income. You can check here whether you are eligible. You will need to have an idea of what your income has been in the last three months; and
- The number of dependents you have – this includes children who do not live with you but for whom you pay financial support such as child support;
If you think you are eligible for free FDR then you will need to arrange your FDR through an approved supplier. In Auckland, this will be FairWay or Family Works Northern. Elsewhere in the country, you can find a supplier here.
The supplier will check your eligibility for free FDR. It will ask for your driver’s licence and your last three months bank statements. You will also need to fill out a simple form. The good news is that if you have already been approved funding for the Family Legal Advice Service (FLAS) in the last 12 months, you are automatically also covered for FDR and you do not need to reapply for funding. Likewise, any approval you are given for FDR funding will mean you can access FLAS within 12 months.
The supplier will also assess that your situation is suitable for FDR by asking you some questions. If it isn’t suitable, you will be given a certificate stating you are exempt from having to attend FDR. It will be important to obtain legal advice as to what steps you should next take. You might be able to do this under the Family Legal Advice Service.
Once your eligibility for funding has been approved and your situation has been assessed as suitable for FDR, the supplier will connect you with a mediator. The mediator will want to meet with each of you individually at first. At that meeting, the mediator will learn more about your situation, further assess your situation for suitability for mediation and discuss the process more with you. If there is agreement to do so, the mediator will then meet with both of you together to try to help you resolve your parenting issue.
Your time with the mediator will be limited therefore using that time to focus on the children and the future, rather than going over past grievances in your relationship with the other person, will be important. In order to get the most out of FDR, you may be recommended to attend preparatory counselling or conflict coaching. Again, if you have been approved funding for FDR, this will be free. Preparatory counselling or coaching is a great opportunity to speak with someone about what is concerning you and to receive coaching as to constructive communication about those concerns and issues.
Most mediators also urge parties to receive legal advice about their situation either before attending mediation or about any agreement reached at FDR. Having legal advice enables you to make informed decisions at mediation. If you are eligible for funded FDR, you should also be eligible to receive free legal advice under the Family Legal Advice Service. If you reach agreement at FDR or mediation, your mediator will write up your agreement. You can ask to have an opportunity to discuss the agreement with your lawyer before you sign it. You may also want to canvass with your lawyer whether you should seek Court orders that reflect aspects of your agreement.
The good news is that FDR is not just available to those who are eligible for funding. Even if you are not eligible for fully funded FDR, you will likely be eligible for partially funded FDR. In Auckland, the Family Dispute Resolution Centre offers partially funded FDR at a cost of $897.00 (at the time I wrote this).
FDR is for a limited amount of FDR services and time with your mediator. Some of our clients with parenting issues have indicated they want a higher level of service provided to them and more time made available to them by the mediator than funded or partially funded FDR provides. For those clients, we have been engaged privately to mediate their dispute successfully. Likewise, clients who recognise the benefits of mediation for their property issues often opt to engage us or another mediator privately to mediate.
FDR must be provided by approved Family Dispute Resolution Providers who are trained in family mediation. At Family Law Results, we are approved to provide FDR and mediation services so give us a call on (09) 297 2010. We are happy to provide FDR or mediation services or legal advice and coaching as you prepare for and work through mediation.
This week, I am continuing the theme of the last two blog posts about free legal advice and free legal services. Over five years ago (yes, I cannot believe it myself – 5 years ago!), I blogged about 10 free things you can do to help resolve your family law issue so it seemed pretty apt to repost that blog. I’ve tweaked it a little to take into account changes since 2012. Read away…
While listening to the radio while driving this afternoon, I learned that Lonely Planet has released a list of the top ten travel things you can do for free which got me to thinking about what ten free things one can do to help get through a family law issue.
While my list may not be as exciting as discovering the Staten Island ferry is still free or that entry into the Musee de Louvre is free on Sundays, it will likely be a lot more useful than LP’s list to those of you going through a separation or family law dispute.
- Head to www.justice.govt.nz – under the “Publications” section, there are a number of links to the Ministry’s brochures and fact sheets in PDF form. If it is a family law issue, there is likely to be a brochure on it here. If you don’t have access to the internet, your local Family Court or Citizen’s Advice Bureau should have copies of the brochures.
- Take a look at the website of Collaborative Advocacy NZ at www.collaborativelaw.org.nz. This could open up to you the opportunity to resolve your family law issue without Court proceedings and in a far more conciliatory manner than you ever envisaged. The few lawyers trained in Collaborative Law in NZ are passionate about it so you should have no trouble finding one who will take some time to have an initial chat with you about it to see if it will suit your situation. You can find some lawyers who are willing to provide a free 20 minute consultation about Collaborative Practice here.
- Check out your local Citizen’s Advice Bureau. Most run a free legal advice clinic. You will usually have to make an appointment. These are usually only 15 minute time slots with a lawyer but such a session may help point you in the right direction towards resolving your issue.
- Talk to a trusted friend or family member who has already been through a separation or divorce. Be clear about what you hope to get out of the discussion. You may not be wanting someone to simply use you as a sounding board as they regurgitate the whole story of their separation so choose your person carefully and be armed with some key questions so you can get some useful tips – who would they recommend as a lawyer? As a counsellor? What worked for them? What didn’t?
- Want to know how much child support that you may have to pay or that you may be able to receive? www.ird.govt.nz has a great free child support calculator.
- If you are a parent of dependent children, get along to the free “Parenting through Separation” programme run through the Ministry of Justice. For most parenting and guardianship disputes, the Court requires you to have completed this programme before you file Court proceedings. My clients who have done this programme have all given positive feedback on the helpfulness of this course. Its only cost is your time. You can find a course through Plunket or here.
- Inevitably a separation means an overhaul of your finances. www.sorted.org.nz will help you do just that – get sorted. Alternatively, most areas have a free budget advisory service. Most of the banks’ websites also have very easy to use calculators which are a great starting point for helping you calculate things like how much you can borrow, what the repayments will be etc.
- If you have an issue about the care arrangements for your children, see if you qualify for the free Family Legal Advice Service and Family Dispute Resolution (Mediation). If you already have Family Court proceedings about your children, you may be able to get a referal to counselling to help you and the other parent or guardian work together to make arrangements for the children’s care work.
- Use your local library. There is a large number of books available for adults, young people or children about separation and divorce.
- Listen. Sounds easy, doesn’t it, but when one is in the midst of a discussion about an emotionally charged issue it is surprisingly difficult to stop talking, stop hearing what you think the other person has said or is going to say, stop jumping to “solve” the problem being discussed and to actually just listen openly but I never said these were “free” AND “easy” tips! Listening is completely free and I am convinced it is the single most effective thing people facing a family law issue can do to resolve that issue.
If you want help to resolve a family or relationship issue, go to www.familylawresults.co.nz.
There’s no such thing as a free lunch, right? In my last post, I showed that needn’t be true of legal advice. Under the Family Legal Advice Service, you can receive initial legal advice and assistance about your parenting issue, free of charge, from Family Law Results. However, with Legal Aid, things take a slightly different turn. Rather than a free lunch, Legal Aid is probably a case of “eat your lunch now and pay later”.
Whether you are eligible to receive Legal Aid will depend on:
- Your income;
- The number of dependents you have – this includes children who do not live with you but for whom you pay financial support such as child support;
- Your assets; and
- The type of family law issue you have and the reasons you have for pursuing the issue. Legal Aid is available for most family law issues, including paternity, relationship property, domestic violence and urgent parenting proceedings.
If you want to apply for family Legal Aid, your first step should be to engage a lawyer. Not all lawyers are approved to offer Legal Aid services – you will need one who is an approved Legal Aid Provider in family law. Your lawyer will be able to assess whether you will be eligible to receive Legal Aid and will be able to help you complete the Legal Aid application form.
To apply for Legal Aid, you will need to complete an application form (that your lawyer can give you) and provide your lawyer with:
- your last three months’ bank statements;
- proof of your pay or WINZ benefit;
- a rates notice for any home you may own;
- proof of your debts (if Legal Aid requests this); and
- a financial declaration form from any partner or spouse you may have.
Unless your matter relates to domestic violence proceedings, you will also need to pay a $50 user charge to your lawyer.
While you have a grant of Legal Aid, your lawyer will send his or her invoice for work undertaken for you to Legal Aid for payment. However, unless you are seeking assistance for a domestic violence application, Legal Aid will usually require that you repay some or all of the legal costs it pays for you. See what I meant about Legal Aid not being a free lunch? Legal Aid may require you to make automatic payments each week to it. If you sell a home you own or you receive any settlement payment in your legal dispute, you will be required to repay your debt to Legal Aid from the funds you receive. Legal Aid can also charge you interest on your debt.
If you are granted Legal Aid it will be for a very limited amount of funding for each step of your legal matter. It is important to be mindful of this when using the services of your lawyer.
Legal Aid services must be provided by approved lawyers. At Family Law Results, we are approved to provide Legal Aid for family law matters so give us a call on (09) 297 2010.
Tiana called us recently with concerns about her son, Jarrod, who has lived with his father for a number of years. She was frustrated about a lack of information and consultation about Jarrod’s schooling. Tiana also wanted to secure more time caring for Jarrod. We were able to offer the Family Legal Advice Service (or FLAS) to Tiana. This enabled us to meet with her to provide initial free legal advice to her. During the initial advice session, we were able to help her develop a plan for resolving the issues about Jarrod’s care arrangements.
If you have an issue about the parenting or guardianship arrangements for your child then, like Tiana, you may qualify to receive some free legal advice under the Family Legal Advice Service.
The service is delivered in two parts. At the first session, you will receive legal advice about your responsibilities and options for resolving the issue, the factors a Court would consider if it were deciding the issue and the types of orders it may make. We are able to assist you to develop a plan for resolving the dispute and, if need be, refer you to the appropriate professionals to assist you with mediation (Family Dispute Resolution) and/or Parenting Through Separation.
If you try Family Dispute Resolution and are not able to resolve the issue there, you may wish to make an application to the Family Court. This is where the second part of the Family Legal Advice Service comes into play. We will assist you to fill out the application forms for your Court proceedings. You will usually need to file the proceedings after having received help to work out what forms you need to file and what information you need to include in them.
So, how do you know if the Family Legal Advice Service will be suitable for your situation? When you call us, we will assess your situation but generally, the Family Legal Advice Service will be appropriate if:
- You meet the financial eligibility criteria. This is based on your income and the number of dependents you have. You can check here to see if you qualify. Your spouse or partner’s income is not taken into account but he or she must have no income to be considered a “dependent”. To be a dependent, your children do not need to live with you but you do need to be supporting their maintenance. For example, Jarrod was considered a dependent of Tiana’s because, even though he doesn’t primarily live with her, she does pay child support for him.;
- The issue you need assistance with is one regarding the care arrangements or guardianship of children; and
- There are no urgent issues requiring urgent Court intervention, for example: domestic violence or drug use. In these circumstances, legal advice will likely be available to you under Legal Aid if you are on a low income
FLAS must be provided by approved lawyers. At Family Law Results, we are approved to provide the service so give us a call on (09) 297 2010 if you wish to discuss the Family Legal Advice Service.
If the Police were to tell you that your partner has a history of domestic violence against previous partners, would that information lead you to end your relationship?
The aim of New Zealand’s Family Violence Disclosure Scheme is to allow the Police to disclose information about a partner’s previous violence to a current partner so that person may make informed decisions about whether and how they continue their relationship. Our own scheme is based on a scheme in the UK known as “Clare’s Law” after 36 year old Clare Wood who was strangled and set alight in her home in 2009 by her ex-boyfriend. Clare was not aware that he had a history of violence against women, including kidnapping an ex-partner at knifepoint.
The scheme is relatively straightforward. Let’s use an example. Simone is in a relationship with Evan and has recently become concerned about his angry outbursts and her safety during those outbursts. Simone may make a request to the Police to have Evan’s family violence history made known to her. The request can be simply made by Simone attending a Police Station, calling a non-emergency Police phone number or speaking with a Police Officer on the street.
Let’s now consider the situation if Simone’s brother, Tane, and her friend, Wendy, have concerns for Simone’s safety in her relationship with Evan. Tane or Wendy may also make a request to the Police for Evan’s family violence history. However, the Police may decide not to release this information to Tane or Wendy. Instead, the Police may choose to approach Simone directly with the information or another person who can assist with her safety.
In some cases, the Police may decide to proactively inform Simone of Evan’s family violence history without any request having been made.
Of course, there are limitations to the scheme. So much family violence lies below the radar and is not reported to Police. This means Evan may have a history of unreported violence which Simone would not become aware of under the Scheme.
Furthermore, the psychological aspects of family violence mean a woman may be unable to seek out the information. Even if she does acquire the information, she may face considerable psychological and practical issues around bringing the relationship to an end.
At FLR we are concerned about how widespread knowledge of the Scheme is. The Police have information on its website as do a number of other Family Violence support agencies. The Scheme was also reported on at its inception. However, anecdotally, it seems to us the general public are not widely aware of it.
The Scheme has been in place for just over a year. In its first six months, 38 cases had been referred to the scheme for information and the Police opted to proactively disclose information where they were concerned for a person’s safety in 21 cases. Not huge numbers but that still represents 59 people who have received information that may be influential in their decision making about their relationship and the risks it may present to their own personal safety and that of any children they may have.
If you have concerns about domestic violence:
- in an emergency call the Police on 111.
- if you wish to receive advice about protection orders , call us on (09) 297 2010 or 0800 email us at lawyers@familylawresults.co.nz.
- the following organisations can also offer assistance: Women’s Refuge (ph 0800 REFUGE) , Shine (ph 0508 744 633), Family Violence Information Line (ph 0800 456 450).
- to learn how to hide your online searching and websites visited (including your visit here)
It is that time of year again. A time for reflection, resolutions and new beginnings. For a number, once the Christmas decorations and camping gear are packed away, they must face their marriage or significant relationship coming to an end. For lawyers specialising in family law, the phone rings hot in January as couples separate. Separating may be a decision that has been some time in the making for you but which you have delayed “to get through Christmas”. Possibly spending so much time together over the holidays has shone light on the reality that your relationship has run its course. Perhaps the credit card bills have come in and financial stress has become the final straw for your relationship to bear. Maybe you have been separated a while but are in need of a change to the post separation dynamic between you and your ex.
Whatever the circumstances behind your separation, whether it has just happened or you’ve been separated a while now, here’s four resolutions that you might like to consider:
Check: Is it Really Over? If you are newly separated or considering separating, take pause and check whether the relationship is really over. Separating is hard to come back from and has significant financial and personal implications for you, your spouse, any children you may have and your wider whanau. Being proactive and considered about the decision is important. Now is not the time for being impulsive. Spending some time with a lawyer to get an overview of what lies ahead if you separate allows you to make a fully informed decision. Counselling, individual and joint, may assist you to work through the issues that trouble your relationship and avoid separation. If it cannot be avoided, counselling may help you to be on the same page about how you both want to make this significant change to your family.
Doing it Differently: Most of us have seen and heard the horror stories. Separated friends or family members who have spent years and tens of thousands of dollars litigating issues about their children and property. Many couples aim for a simple, amicable separation only to end up in ever increasing conflict which they feel unable to bring themselves back from. Gwenyth Paltrow and Chris Martin’s “conscious uncoupling”? You could be forgiven for having cynically thought this is impossible. But, what if it weren’t? What if transitioning you and your family through a separation could be undertaken in a way that aims to focus on your important concerns and your children while avoiding rising acrimony?
Lawyers trained in Collaborative Practice work with their clients to achieve dignified, equitable outcomes that are personalised to their unique needs. Whether you are on the cusp of separating or are well along the path, it isn’t too late to look up a Collaborative professional and explore whether this process may be right for you and your family.
Save Money – Use the Right Professionals for the Right Stuff: One of the challenging issues around separations and legal issues is facing your altered financial position. So, it really doesn’t make sense spending more than you need to on legal costs, does it?
One way you can protect yourself from excessive legal costs is to ensure you are using the right professionals to deal with the right issues. This may mean having multiple professionals on board but ultimately, having each do what their skill base best equips them to do should mean reduced costs for you overall. Many professionals have lower charges than lawyers.
A common example is counselling. Clients often will come to their lawyer bearing the heavy emotion that accompanies separation. They share this with their lawyer (often at length). The sheer weight of their emotional state can mean they are unable to properly take on board the information the lawyer provides, let alone carry out any fruitful decision making about the legal issues. Do this several times and you end up with a large bill with little to show for it in a legal sense.
While most lawyers will be empathetic to your situation and may even be very good listeners, their skill base is in the law not mental health. Better to spend time and (usually less) money working with a counsellor or psychologist to help you work through the emotional challenges you are facing. These professionals usually have lower charges and you’ll have the right professional to support you. When you see your lawyer, you’ll have better focus on the legal issues and ultimately will likely spend less. Got finance/budgeting/business issues? Issues with assisting your child through a separation? Same deal!
Take the Higher Road: Struggling to move out of the conflict zone with an ex who seems to know just how to rile you up? Tired of constantly having to battle together over most issues? For the sake of your emotional wellbeing and the wellbeing of your children, its time to change that. While we’ve all heard the saying “It takes two to tango” and it is easy to believe change can’t happen unless the other person changes, it also only takes one to stop the tango. Perhaps what is required is a change in the method or timing of your communications. If you still have legal issues between you, deploying a process like Collaborative Practice or Mediation will usually not inflame the conflict between you in the same way litigation does. It may be as simple as resolving to always take the higher road when faced with a challenging situation with your ex. For some, this may mean having to get the expertise of a conflict or divorce coach, counsellor or psychologist to give you the tools to respond differently when your ex presses those buttons.
Do Something You Couldn’t do Before: There is a lot of compromise in marriage but guess what? If you are separated you can choose to do things you couldn’t before your separation. For one lady I knew, this meant getting a dog which was something she couldn’t do during her marriage as her husband was allergic to dogs. For another client, it was travel while another chose to throw lavish dinner parties. I have heard another client speak positively about now simply being able to watch what she wants on the telly. Whatever it is for you, these small choices around shaping and constructing your post separation life can be liberating. Even if the decision to separate was not yours and you are struggling with it, making choices to do things you’ve had to compromise on previously can help you to create a silver lining and see the future more positively.
The feeling of renewal and fresh starts at the beginning of the year gives us a valuable opportunity to assess whether life is how we want it to be and to take action. Resolutions like those above will have long term implications for the wellbeing and future relationships for you and your children so its well worth putting some careful thought into them. Most of all, be gentle with yourself and those around you. We’re all just trying to do our best!
Thinking of separating? Separated and wanting to resolve your legal issues in a respectful way out of Court? Arrange a consult in person or by Skype/phone with Family Law Results by calling 0064 9 297 2010.
With only four weeks until the holiday season, do you still not have a confirmed agreement about how the children will split the holidays between you and your ex? Have you tried discussing it together, even recruiting family or lawyers to try to help broker an agreement but to no avail? Given my previous comments about how unlikely it is to be able to get Court time urgently before Christmas, you may be feeling slightly panicked about how and whether this issue is going to be resolved.
Never fear – there are other options for resolving parenting issues as quickly as possible before the holidays. I’ve previously blogged about Mediation and Collaborative Practice as alternatives to Court. When there are issues to be resolved urgently, these processes can be accessed and worked through quicker and more cost effectively than court proceedings can. Both processes have a focus on the future and on your children. These processes come with the added bonus that each are focussed on achieving resolution without inflaming relations between you and your ex. How perfect is that for the holiday season?!
To undertake Collaborative Practice, you will each need to engage a lawyer who is trained in the process. You can find collaboratively trained lawyers here. Engaging a collaborative lawyer and arranging a collaborative meeting can still likely occur before the holidays if you get things underway now. Collaborative Practice is focused on finding solutions that meet the future needs of you, your ex and your children in a respectful, dignified way. Your lawyers are there to advise you and support you through the process. Forget what you’ve seen on television courtroom dramas – collaborative lawyers are trained to facilitate the process in a way that is mindful of the future co-parenting relationship you will need to share and which allows you to find more creative solutions than the Court may well be able to impose.
A mediator may well be able to meet with you and your ex relatively quickly if you initiate mediation now. The mediator will guide you both through a discussion about the issues, help you consider the options and put your children’s needs front and centre. The mediator cannot decide what will happen for you and your children – that rests with you. I like to think of my role of mediator as being like the GPS in your car. I can guide you to a destination but ultimately you are in the driver’s seat and choose where to go and how to get there! In New Zealand, mediation can be accessed in one of the following ways:
- contacting a mediator privately. You can find mediators through the Family Law Section of the New Zealand Law Society.
- Contacting the Family Dispute Resolution Centre in Auckland.
- Your local FDR supplier, particularly if you believe you qualify for government funded mediation. FairWay and FamilyWorks are good starting points.
The holiday season is said to be the season of peace and goodwill. I urge you to choose to use a resolution process that encourages both those things – and avoids Court delays!
Want to look further into Collaborative Practice or Mediation? The Family Lawyer, Selina Trigg, is an experienced mediator and Collaborative Lawyer so give her a call on (09) 297 2010 to discuss what option may be appropriate for your situation.
Well, there it is – less than 30 days until Christmas! Are you sorted? You may be the type to have your Christmas gifts bought and wrapped, the menu planned and the relatives organised 6 months ago. You may have more of a “leave it to the last minute”, shop on Christmas Eve and forget to defrost the turkey approach. Whatever the case is, there is one thing that shouldn’t be left a minute longer – sorting out the parenting arrangements for your children at Christmas.
Some separated parents may have a standing arrangement, either in an order, parenting plan or through simply doing the same thing each year. If this is you, then it is likely to be a simple matter of politely confirming this arrangement with your ex.
For those who don’t have such an arrangement in place or wish to try to negotiate something different, you need to start resolving this NOW. Forget about Christmas shopping or getting that ham glaze recipe from your aunt. This takes priority. If you leave it any longer, you will likely be unable to find anyone who can assist you to resolve the issue at short notice.
So, what should you do? First things first, before raising the issue think about what is important for you and what you think may be important for the children and their other parent. Then consider a range of options that you can propose to the other parent which may satisfy those important concerns. There are a range of issues that you will likely have to consider, including:
- What are the children’s views?
- Do both parents celebrate Christmas? In some families, the holiday is more significant to one parent than the other.
- How far away will you be from each other on Christmas Day? This will impact on how easily arrangements can be made for your children to spend time with each parent.
- What arrangements with other family and people important to your children are there?
- What happened last year? If the children missed out on time with one parent last Christmas, perhaps this year they should get time with that parent.
- What family traditions do each parent’s families have around Christmas?
- Are their family members or loved ones for whom this may be their last Christmas?
- What ages and stages are your children at? For very young children, shorter blocks of contact may be more appropriate.
If you cannot resolve the issue with your ex then you will need to consider getting outside assistance quickly. This may be in the form of a trusted family member or friend who can facilitate the negotiations between you. Alternatively, you may need to approach a lawyer or seek Family Dispute Resolution through one of the FDR providers in your area. However, doing this sooner rather than later, will help to ensure you can find someone to assist you.
Once you have your arrangements in place, the following may help you survive the holiday season parenting arrangements:
- Try to involve your children in the planning so that they have a say in what happens both in terms of what time they spend with each parent but also what they do during their time with you. However, don’t put the emotional burden of “deciding” on their shoulders.
- Adopt a positive and encouraging attitude with your children towards them spending time with your ex and their family.
- Communicate with your ex about important end of year celebrations and activities, such as end of year assemblies, Christmas concerts and parties and about the arrangements for attending these. This should be a time when your children get to enjoy having both their parents and loved ones attend such events without feeling stressed about how the adults are going to behave!
- If you aren’t having the children on Christmas Day, this can be difficult. Try to ensure you make lots of plans to have a full day with other loved ones and friends or even volunteering at Mission. This way you will have less time to dwell on the fact you are without your children while also giving you the opportunity to create new Christmas traditions and build upon other relationships.
- If you are having the children on Christmas Day, ensure they get contact with their other parent on the day by phone or Facetime/Skype etc. Arranging in advance for the children to have time with the other parent as close to Christmas Day as possible also means the children know they will be having a Christmas celebration with that parent.
- Christmas is meant to be a magical time for children so take steps to ensure it is that way for your children. Parents arguing or sniping about each other or their families, spending hours in a car traipsing across the countryside between families (only to stop briefly before doing it again) and feeling pressured to ‘favour ’a parent is not the stuff magical Christmas memories are made of.
- Carefully consider Santa and gift giving. Where possible, consult with your ex about where Santa will be delivering to (if he visits your children), the appropriateness of certain presents (should your 7 year old really be getting an iPhone?) sharing the cost of presents or setting a limit on how much you each spend. Also, think about what message it sends to your children and their other parent if you encourage and support your children to buy or make that parent a gift.
Above all, a reasonable approach will go a long way towards making life easier at Christmas for yourself and your children. This isn’t always easy to achieve amid the emotion of a separation. However, the build up to Christmas can be stressful enough of itself so take a deep breath and be prepared to circumvent a lot of stress by being reasonable and compromising. Sometimes goodwill and a spirit of compromise and inclusiveness is what is required. ‘Tis the season after all.
Having difficulty agreeing on holiday parenting arrangements? Give us a call at Family Law Results on 09 297 2010 or at lawyers@familylawresults.co.nz (but don’t leave it too late!).
