Latest / The Post-Separation Abuse Podcast / 124. When Children Resist or Refuse - Part 4: Your barrister is not an oracle

Transcript

124. When Children Resist or Refuse - Part 4: Your barrister is not an oracle · The Post-Separation Abuse Podcast

• 0:01
  SPEAKER_00: Welcome back to another episode of the Post Separation Abuse Podcast.
• 0:05
  SPEAKER_00: I'm your host, Danielle Black.
• 0:08
  SPEAKER_00: In the last episode, I told you that your nervous system is not an oracle.
• 0:13
  SPEAKER_00: This week we're coming for somebody who's a little bit more expensive.
• 0:19
  SPEAKER_00: But before we do that, let's unpack what this series has been doing so far.
• 0:26
  SPEAKER_00: Every episode in our When Children Resist or Refuse series has a particular purpose, an important purpose, an important job.
• 0:39
  SPEAKER_00: In episode one, we zoomed in on the particular child's behavior.
• 0:47
  SPEAKER_00: Whether they're verbalizing no or whether their behavior is telling us no in terms of spending time with a parent.
• 0:55
  SPEAKER_00: We looked at what might that no mean.
• 1:00
  SPEAKER_00: And we spoke about the fact that resistance and refusal is information.
• 1:04
  SPEAKER_00: It's not in and of itself a diagnosis.
• 1:08
  SPEAKER_00: The reason for the resistance or the refusal can be unknown.
• 1:13
  SPEAKER_00: Multiple hypotheses remain possible, and it's important that we don't immediately leap from behavior to cause.
• 1:22
  SPEAKER_00: Because oftentimes the exact cause isn't clearly known.
• 1:30
  SPEAKER_00: In episode two, we looked at the relationship.
• 1:34
  SPEAKER_00: We looked at what exactly are we trying to preserve?
• 1:39
  SPEAKER_00: We unpacked what a meaningful relationship is.
• 1:43
  SPEAKER_00: What does that actually even mean?
• 1:45
  SPEAKER_00: We know that it's not synonymous with equal time, with a number of overnights, with proximity or compliance.
• 1:53
  SPEAKER_00: We unpacked the fact that before we decide that a relationship between a parent and a child has been damaged, we first need to understand what relationship actually existed to begin with.
• 2:06
  SPEAKER_00: Then in last week's episode, episode three, we looked at the preferred parent's interpretation and the fact that our nervous system is not an oracle.
• 2:21
  SPEAKER_00: This is where we did a deep dive into what we as a preferred or a primary parent were bringing to the table.
• 2:30
  SPEAKER_00: And what were we bringing to what we were seeing?
• 2:34
  SPEAKER_00: The history, the trauma, nervous system activation, all of those things can provide information.
• 2:41
  SPEAKER_00: They all matter to a degree.
• 2:44
  SPEAKER_00: Sometimes our inner alarm is detecting genuine danger.
• 2:49
  SPEAKER_00: But sometimes our own internal responses are also information that require much deeper reflection.
• 2:57
  SPEAKER_00: Our internal responses can also require assessment.
• 3:02
  SPEAKER_00: Our internal responses are not an oracle telling us automatically what our child's behavior means.
• 3:11
  SPEAKER_00: Today we're turning the focus onto the professionals.
• 3:18
  SPEAKER_00: The professional interpretation.
• 3:20
  SPEAKER_00: What are the people advising me making this mean?
• 3:27
  SPEAKER_00: Making my child's resistance or refusal mean?
• 3:31
  SPEAKER_00: Lawyers, barristers, report writers, and other professionals, they contribute expertise and assessment.
• 3:38
  SPEAKER_00: But they're not omnipotent or omniscient.
• 3:43
  SPEAKER_00: Their opinion can be another important piece of information.
• 3:48
  SPEAKER_00: But it's not an answer handed down from the heavens.
• 3:52
  SPEAKER_00: The professional interpretation can also require scrutiny and assessment.
• 4:00
  SPEAKER_00: In future episodes, we'll be turning the focus on the parent who's being resisted and the relationship that our child might have with that resisted parent, and also what is their responsibility in that dynamic.
• 4:17
  SPEAKER_00: We're then going to be moving to other adult responses.
• 4:22
  SPEAKER_00: So, what the fuck do we actually do when our child is resisting or refusing?
• 4:27
  SPEAKER_00: And then we'll be wrapping up the series by looking more closely at the destination, by reflecting on what on earth are we ultimately trying to build.
• 4:38
  SPEAKER_00: So over the course of this series, we're not just asking why children resist or refuse time with a parent.
• 4:44
  SPEAKER_00: We're looking at what happens once they do, how their behaviour gets interpreted, who decides what it means, and how the adults around them respond.
• 4:55
  SPEAKER_00: Last week I told you that your nervous system was not an oracle.
• 5:00
  SPEAKER_00: Well, as it happens, your barrister isn't one either.
• 5:06
  SPEAKER_00: Now this is not an anti-lawyer episode, quite the opposite.
• 5:12
  SPEAKER_00: Your lawyer or barrister may know vastly more than what you do about litigation, evidence, procedure, cross-examination, costs, judicial approaches, and the strengths and weaknesses of your case.
• 5:28
  SPEAKER_00: That expertise absolutely matters.
• 5:32
  SPEAKER_00: Their advice should absolutely inform your decision making.
• 5:37
  SPEAKER_00: Sometimes their advice should even change your mind.
• 5:41
  SPEAKER_00: But their counsel is most useful when you understand the advice well enough to be able to use it.
• 5:50
  SPEAKER_00: I hear versions of the following statements on a pretty regular basis.
• 5:57
  SPEAKER_00: My barrister said there's no way the judge will agree to sole decision making.
• 6:04
  SPEAKER_00: My lawyer said I need to agree to five nights a fortnight.
• 6:09
  SPEAKER_00: My barrister said that if I don't offer nine five, I risk the judge ordering fifty fifty.
• 6:16
  SPEAKER_00: My lawyer said if I don't consent, the final outcome will be even worse.
• 6:23
  SPEAKER_00: My lawyer said that if I settle and agree today, at least I get to walk out with certainty.
• 6:31
  SPEAKER_00: Now, maybe every one of those statements was good advice.
• 6:38
  SPEAKER_00: Maybe the lawyer or the barrister making those comments had very good reasons.
• 6:43
  SPEAKER_00: But if the parent walks away, knowing only the conclusion they haven't received the full benefit of the expertise that they're paying for.
• 6:54
  SPEAKER_00: We need to scrutinize those comments.
• 6:57
  SPEAKER_00: We need to scrutinize that evidence.
• 7:00
  SPEAKER_00: So what kind of a statement was the lawyer or the barrister making in that moment?
• 7:06
  SPEAKER_00: Was it a statement about what the law permits?
• 7:10
  SPEAKER_00: Was it an assessment of the evidence?
• 7:14
  SPEAKER_00: Was it a prediction about a likely outcome?
• 7:17
  SPEAKER_00: Was it a warning about litigation risk?
• 7:20
  SPEAKER_00: A strategic recommendation?
• 7:22
  SPEAKER_00: A response to the expert evidence, a professional opinion about the parenting arrangement.
• 7:28
  SPEAKER_00: Those things are not the same thing.
• 7:31
  SPEAKER_00: And this is where, as you've heard me say before on the podcast, our belief here at Danielle Black Coaching is that the parents who tend to come out the other side of all of this feeling much better about their circumstances and about their outcome are the parents who become their own expert.
• 7:54
  SPEAKER_00: The expert in their own case.
• 7:57
  SPEAKER_00: Part of this means we should know enough about the law to understand the conversations going on around us and to be able to ask better questions.
• 8:09
  SPEAKER_00: Now, this is not about becoming backyard barrister Barbie, although that does sound fun.
• 8:16
  SPEAKER_00: And the blueprint, the post-separation parenting blueprint, doesn't teach you how to practice law.
• 8:22
  SPEAKER_00: Your legal team gives you legal advice about your case.
• 8:27
  SPEAKER_00: But if you know absolutely nothing about the statutory framework, then it can be very difficult to understand why your legal team is advising what they are advising.
• 8:39
  SPEAKER_00: Under the current Family Law Act, when a court is deciding whether to make a particular parenting order, the child's best interests are the paramount consideration.
• 8:49
  SPEAKER_00: The current section 60cc requires the court to consider, among other things, arrangements that promote the safety of the child and each person who has care of the child, and that includes safety from family violence, abuse, neglect, or other harm, views expressed by the child, the child's developmental, psychological, emotional, and cultural needs, each proposed carer's capacity to meet those needs, the benefit to the child of relationships with parents and other significant people where it is safe, and anything else relevant to that particular child.
• 9:28
  SPEAKER_00: There are also additional considerations for Aboriginal and Torres Strait Islander children.
• 9:34
  SPEAKER_00: When the court is considering safety, the Family Law Act expressly requires consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child.
• 9:48
  SPEAKER_00: So family violence matters, your safety matters, your children's safety matters, history matters, parenting capacity matters, our children's developmental and emotional needs matter, their views can matter, relationships can matter, and the court has to bring all of those things together.
• 10:10
  SPEAKER_00: I'm giving you that framework to help with understanding the questions that your lawyer might be advising you about.
• 10:19
  SPEAKER_00: Not so that you can just go and apply this legislation to your own case without specific legal advice.
• 10:24
  SPEAKER_00: This is general information.
• 10:27
  SPEAKER_00: When we know that safety, parenting capacity, children's views, or family violence are relevant considerations, that still doesn't tell us what a court is going to make of those issues in our particular individual circumstances.
• 10:43
  SPEAKER_00: It doesn't tell us what evidence is required or what orders our evidence actually supports.
• 10:51
  SPEAKER_00: That step of applying the legislation to the issues in our situation and circumstances, that step belongs with your legal team.
• 11:02
  SPEAKER_00: But we do need to keep in mind that this is not an exercise where someone behaved badly at some point in time in the relationship and therefore received some kind of parenting time penalty.
• 11:14
  SPEAKER_00: Parenting orders are not retrospective punishment to a parent who has behaved badly.
• 11:21
  SPEAKER_00: The question is what orders are in this particular child's best interests?
• 11:27
  SPEAKER_00: And I absolutely appreciate that that distinction can sometimes be deeply uncomfortable for victim survivors of family violence.
• 11:37
  SPEAKER_00: Now, sometimes professionals absolutely do misunderstand or minimise family violence.
• 11:43
  SPEAKER_00: I'm the first one to acknowledge that.
• 11:46
  SPEAKER_00: I'm never going to pretend otherwise.
• 11:49
  SPEAKER_00: But sometimes a parent says they don't get it.
• 11:53
  SPEAKER_00: They're ignoring what my ex did to me.
• 11:56
  SPEAKER_00: And the legal team is not necessarily ignoring it.
• 12:00
  SPEAKER_00: Maybe they haven't done a great job of validating it.
• 12:03
  SPEAKER_00: But they may actually accept that the conduct happened, but be instead moving to the next question, which is what does that history tell us about safety, parenting capacity, the child's needs, and the risks that exist now as opposed to in the past?
• 12:24
  SPEAKER_00: Does the problematic behavior continue after separation?
• 12:28
  SPEAKER_00: Is it occurring via communication at changeovers?
• 12:33
  SPEAKER_00: Via financial abuse?
• 12:35
  SPEAKER_00: Are there threats, stalking?
• 12:37
  SPEAKER_00: What's the impact on the kids?
• 12:40
  SPEAKER_00: Is it impacting decision making?
• 12:42
  SPEAKER_00: Does the parent tolerate the child's separate mind, their agency and autonomy?
• 12:49
  SPEAKER_00: Does the other parent respect bodily and emotional boundaries?
• 12:53
  SPEAKER_00: Does the other parent respond appropriately to distress?
• 12:56
  SPEAKER_00: Do they support the child's relationship with the other parent?
• 12:59
  SPEAKER_00: Has anything changed?
• 13:01
  SPEAKER_00: What's not changed?
• 13:03
  SPEAKER_00: What evidence exists?
• 13:06
  SPEAKER_00: Historical family violence and the present implications are related questions, but they're not an identical question.
• 13:15
  SPEAKER_00: And the legal system and the professionals who work within the system can recognize that someone has behaved abusively and still ask whether and how that behavior should impact the parenting arrangements now and into the future.
• 13:35
  SPEAKER_00: A lot of parenting matters don't end with a judge hearing all of the evidence and deciding upon every disputed issue and handing down the orders.
• 13:47
  SPEAKER_00: Parents reach agreement.
• 13:50
  SPEAKER_00: There can be consent orders.
• 13:52
  SPEAKER_00: Consent orders are still court orders, they still have the same legal effect as orders made by a judge.
• 14:02
  SPEAKER_00: So that means that the decision to come to consent is still very consequential.
• 14:08
  SPEAKER_00: I've had parents come to me after consenting to final orders and say things like, I only agreed because my lawyer said there was no way I'd get sole decision making.
• 14:25
  SPEAKER_00: Or I only agreed because they told me that I was risking 50-50 being ordered.
• 14:33
  SPEAKER_00: Or I agreed because they said it could be worse if I went to trial.
• 14:39
  SPEAKER_00: Or I just wanted certainty.
• 14:43
  SPEAKER_00: Now, sometimes, whatever the agreement was, whatever they came to consent on, that might have been a very sensible, informed decision.
• 14:54
  SPEAKER_00: Ongoing litigation involves risk.
• 14:58
  SPEAKER_00: Evidence might not be very strong, the expert evidence might be adverse.
• 15:05
  SPEAKER_00: Costs matter, delays matter, the emotional toll matters, and a negotiated consent outcome can be incredibly rational.
• 15:17
  SPEAKER_00: But certainty about the orders is not certainty about what the orders will produce for your child.
• 15:24
  SPEAKER_00: And before consenting to final parenting orders, it's really important that parents understand the advice well enough to give informed instructions.
• 15:35
  SPEAKER_00: It's important that parents know what they're actually agreeing to and why.
• 15:40
  SPEAKER_00: It's important that they have a deep understanding of what counsel is actually concerned will happen if they don't agree.
• 15:48
  SPEAKER_00: It's important that they understand what facts, evidence, or legal considerations are driving assessment of any risk.
• 15:56
  SPEAKER_00: It's important that they understand what alternatives are realistically available and what they're giving up the opportunity to have determined by the court.
• 16:06
  SPEAKER_00: It's also important that they are aware of what could remain uncertain even if they come to consent on particular things.
• 16:17
  SPEAKER_00: The lawyer is there to answer the legal questions, but every parent needs to be very wide awake and active in that conversation.
• 16:28
  SPEAKER_00: Imagine your lawyer says, I think you should offer nine five before trial because otherwise you risk the judge ordering equal time.
• 16:39
  SPEAKER_00: Well, my first thoughts on hearing something like that is well what does quote risk mean?
• 16:47
  SPEAKER_00: Is equal time simply a legally available outcome that can't be ruled out?
• 16:54
  SPEAKER_00: Is it considered realistically plausible?
• 16:58
  SPEAKER_00: Does this particular lawyer regard you, the client, as being significantly exposed to that outcome?
• 17:09
  SPEAKER_00: If so, why?
• 17:11
  SPEAKER_00: Is expert evidence part of the reason for that advice?
• 17:14
  SPEAKER_00: Has the child already been functioning well in a substantially increased parenting arrangement?
• 17:20
  SPEAKER_00: Has anything been foreshadowed by other decisions in the matter?
• 17:25
  SPEAKER_00: Is there something about the evidence that is driving the advice of the lawyer or the barrister?
• 17:31
  SPEAKER_00: Is there an inconsistency in the case material that affects the advice?
• 17:39
  SPEAKER_00: Is counsel worried about a change of residence application?
• 17:42
  SPEAKER_00: Or did somebody just throw a handful of fucking chicken bones into the air, check which way the wind was blowing, notice a flock of birds heading north, and announce hmm fifty fifty might be on the cards?
• 17:55
  SPEAKER_00: And I'm only half joking.
• 17:58
  SPEAKER_00: I'm saying all of this because possible and likely don't mean the same thing.
• 18:04
  SPEAKER_00: And you don't need your legal team to manufacture an actuarial percentage.
• 18:09
  SPEAKER_00: You need enough reasoning to understand the architecture of the risk, possibility, plausibility, consequence.
• 18:19
  SPEAKER_00: Then and only then can you make an informed decision?
• 18:24
  SPEAKER_00: Now to another question that I think more parents need to ask, and that is does your legal team even know what case you think you're running?
• 18:33
  SPEAKER_00: And do you understand what case your legal team is actually running?
• 18:38
  SPEAKER_00: What is their strategy?
• 18:40
  SPEAKER_00: Do they even have a strategy?
• 18:43
  SPEAKER_00: I say these things because I sometimes see parents doing some pretty extraordinary things.
• 18:49
  SPEAKER_00: Their solicitor is preparing a case on the basis that time will progress and the dispute is just about how quickly.
• 18:56
  SPEAKER_00: Their barrister is trying to manage a perceived change of residence risk.
• 19:01
  SPEAKER_00: Their coach is hearing that the parent wants to prevent progression of overnight time.
• 19:06
  SPEAKER_00: Their psychologist is hearing that the parent is apparently traumatized by coercive control.
• 19:12
  SPEAKER_00: Their Facebook group is saying never to agree to another overnight because you'll never get that back.
• 19:18
  SPEAKER_00: Their YouTube algorithm has decided that every uncomfortable thing is either narcissistic abuse or parental alienation, depending on what they happen to watch at 1 a.m.
• 19:29
  SPEAKER_00: that morning.
• 19:30
  SPEAKER_00: And the parent can think that everyone is working on the same case.
• 19:35
  SPEAKER_00: They're not.
• 19:37
  SPEAKER_00: Sometimes they're not even answering the same question.
• 19:40
  SPEAKER_00: Do not build a shadow legal strategy.
• 19:44
  SPEAKER_00: Educate yourself.
• 19:46
  SPEAKER_00: Utilize coaching.
• 19:47
  SPEAKER_00: Learn about child development, attachment, coercive control, communication, documentation, regulation.
• 19:54
  SPEAKER_00: But don't quietly construct a parallel litigation position that your lawyer does not know exists.
• 20:01
  SPEAKER_00: Your lawyer cannot advise you about significant information that you haven't given them.
• 20:06
  SPEAKER_00: And your barrister can't assess the forensic significance of a concern if they don't know that a significant concern exists.
• 20:14
  SPEAKER_00: And your coach should not be put in a position of helping you optimize a position that bears very little resemblance to the case that your legal team's actually preparing.
• 20:30
  SPEAKER_00: This is about does your case actually make any fucking sense when all of the pieces sit beside each other?
• 20:37
  SPEAKER_00: Now, I know that this can be complicated because human lives are messy.
• 20:42
  SPEAKER_00: Different kids can have different needs.
• 20:45
  SPEAKER_00: It's often appropriate for holiday care arrangements to be different from term time care arrangements.
• 20:52
  SPEAKER_00: A safety concern can emerge after a while and it wasn't there initially.
• 20:58
  SPEAKER_00: A parent can facilitate things because of particular orders or legal advice, even though privately they might be deeply concerned.
• 21:08
  SPEAKER_00: Two apparently inconsistent propositions can both be true.
• 21:14
  SPEAKER_00: But if they are both true, they need to be explained.
• 21:19
  SPEAKER_00: If you say, quote, I believe the children are at risk in this parent's care, and I have voluntarily facilitated substantial unsupervised time for years, what explains those two things sitting side by side?
• 21:37
  SPEAKER_00: If you say direct communication is psychologically intolerable because of the ongoing coercive control, but you also regularly initiate child related communication, well, what's the distinction?
• 21:53
  SPEAKER_00: If you say an increase from four nights to five will cause such severe psychological deterioration.
• 22:00
  SPEAKER_00: That I will be unable to parent, well, what's magically changing at five nights?
• 22:06
  SPEAKER_00: If you're saying I cannot safely support this child having additional time with the other parent while your legal team is recommending substantial additional holiday time as a litigation risk strategy, do you understand how those positions fit together?
• 22:24
  SPEAKER_00: Now, maybe there is a completely coherent answer, but the point is that you should know it.
• 22:30
  SPEAKER_00: Apparent inconsistency does not automatically mean that either proposition is false or wrong.
• 22:38
  SPEAKER_00: Pressure testing your position is not the same as arguing against yourself.
• 22:43
  SPEAKER_00: But it's important to be looking at propositions in your case if there are some that seem to be inconsistent with each other.
• 22:55
  SPEAKER_00: For example, if you're preparing to respond to an allegation that your mental health or your reliance on support impairs your parenting capacity while also saying that increased time with the other parent would affect you so severely that you could not cope.
• 23:12
  SPEAKER_00: Well what does cope mean?
• 23:16
  SPEAKER_00: Are you describing distress, dysregulation, functional impairment, impaired parenting capacity or something else?
• 23:22
  SPEAKER_00: There might be a really coherent distinction.
• 23:25
  SPEAKER_00: And if there is, it's important that you understand your actual experience and that you ask your lawyer how they understand its legal significance.
• 23:37
  SPEAKER_00: Because if you can't explain how the propositions fit together, that's something to clarify with your legal team before you're trying to understand it under the pressure of preparing for a final trial.
• 23:49
  SPEAKER_00: All this to say, your lawyer can't run a case that exists only in your head, and you can't make informed decisions about the case that exists only in your lawyer's head.
• 24:00
  SPEAKER_00: Unexplained inconsistencies can make it harder for everyone to understand your case.
• 24:06
  SPEAKER_00: And all of this can become even more complicated when we think about all of the other professionals involved and the fact that your private case is not necessarily the case that your legal team's putting before the court.
• 24:22
  SPEAKER_00: And this is especially important with allegations and concerns.
• 24:27
  SPEAKER_00: You may privately hold a serious concern about something to do with the other parent's parenting.
• 24:34
  SPEAKER_00: You might discuss it with your psychologist, you might discuss it with your coach, but is it explicitly in your affidavit?
• 24:41
  SPEAKER_00: Has your lawyer advised you about it?
• 24:44
  SPEAKER_00: Is your legal team advancing it?
• 24:46
  SPEAKER_00: Is it supported by evidence?
• 24:49
  SPEAKER_00: Is it an allegation, an inference, an expert opinion, an established fact or something that's genuinely unknown?
• 24:59
  SPEAKER_00: Those categories all matter.
• 25:01
  SPEAKER_00: Likewise, something appearing in a family report doesn't magically become a judicial finding just because everybody starts behaving as though the report is the final judgment.
• 25:12
  SPEAKER_00: A family report might be a highly influential piece of evidence and a highly influential professional opinion.
• 25:21
  SPEAKER_00: It might create a litigation risk.
• 25:24
  SPEAKER_00: Your legal team might advise you how to respond to it strategically.
• 25:30
  SPEAKER_00: But a report writer is not the person determining the disputed facts and responsible for making the final orders.
• 25:38
  SPEAKER_00: So this again is why we need to understand what our legal team thinks the report does to our case and also why.
• 25:47
  SPEAKER_00: Why?
• 25:47
  SPEAKER_00: What is their reasoning?
• 25:49
  SPEAKER_00: What is the strength of their reasoning?
• 25:51
  SPEAKER_00: Have they looked at the inconsistencies in the body of the report and then in the conclusions and the recommendations?
• 25:59
  SPEAKER_00: Knowing what sort of questions to ask is important.
• 26:02
  SPEAKER_00: And what about when trauma becomes part of the legal argument?
• 26:06
  SPEAKER_00: And this is something that we explored in more depth last week.
• 26:10
  SPEAKER_00: Sometimes a parent says, If the children spend more time with the other parent, I'm going to become so distressed that it will affect my parenting.
• 26:20
  SPEAKER_00: Now, Australian family law has actually considered this kind of issue for a really long time.
• 26:27
  SPEAKER_00: You might hear lawyers or others who work in the family law space refer to Ray Andrew cases, but be careful with the phrase Ray Andrew principle.
• 26:42
  SPEAKER_00: The full court in Keene and Keene made clear that this line of authorities does not create a binding rule that replaces or modifies the statutory best interests framework.
• 26:56
  SPEAKER_00: The court still has to apply the act to the particular facts.
• 27:01
  SPEAKER_00: The cases illustrate that in some matters, courts have examined the psychological effect of parenting arrangements on a parent, the evidence about that effect, any impact on caregiving capacity and the consequences for the child.
• 27:18
  SPEAKER_00: They don't create a hard and fast formula for when psychological distress will affect the parenting orders.
• 27:27
  SPEAKER_00: So when we're saying things like, quote, I'll be dysregulated if XYZ is ordered in parenting arrangements, we have to go deeper.
• 27:42
  SPEAKER_00: We have to get more specific.
• 27:44
  SPEAKER_00: What impairment are we talking about?
• 27:46
  SPEAKER_00: What evidence?
• 27:47
  SPEAKER_00: What effect on parenting?
• 27:49
  SPEAKER_00: What effect on the child?
• 27:50
  SPEAKER_00: What's causing it?
• 27:51
  SPEAKER_00: What safeguards exist?
• 27:53
  SPEAKER_00: What treatment or support exists?
• 27:56
  SPEAKER_00: What competing considerations are there?
• 27:59
  SPEAKER_00: Keen and Keen is useful because the mother argued that orders for the child to progress to unsupervised time with the father would cause distress and anxiety that would impair her parenting.
• 28:13
  SPEAKER_00: That argument did not produce the outcome that she was seeking.
• 28:17
  SPEAKER_00: The full court upheld the orders and emphasized that the earlier cases do not make a binding rule outside the statutory framework.
• 28:25
  SPEAKER_00: Other cases have referred to the need for cogent evidence that caregiving capacity would be discernibly impaired.
• 28:34
  SPEAKER_00: Now let's compare that with another case, Arends and Pilkvist.
• 28:41
  SPEAKER_00: The circumstances were overwhelming.
• 28:44
  SPEAKER_00: One child had died in a car crash while the father was driving.
• 28:49
  SPEAKER_00: The mother suffered PTSD and linked disorders.
• 28:54
  SPEAKER_00: The court considered whether the surviving child spending time with the father would cause psychological degradation in the mother that could be severe enough to impair her parenting capacity and adversely affect the child.
• 29:09
  SPEAKER_00: So understandably, this was not a, oh well, this parent says that XYZ will trigger her.
• 29:16
  SPEAKER_00: There was extensive evidence.
• 29:18
  SPEAKER_00: Then we look at Cheadle and Pointer.
• 29:21
  SPEAKER_00: With that case, the mother's anxiety about the child's safety did not operate simply as evidence that dad's time should be restricted.
• 29:30
  SPEAKER_00: Her observable behaviour, extreme anxiety, control, micromanagement, withholding of the child, and a lack of change over time became relevant to the assessment of her own parenting.
• 29:43
  SPEAKER_00: And in the recent 2026 decision in Avram and Delora, the court made findings that the father had perpetrated family violence, including coercive and controlling family violence.
• 29:58
  SPEAKER_00: The mother genuinely believed that the child had been sexually abused by the father.
• 30:02
  SPEAKER_00: The father in the independent children's lawyer sought a change of residence, arguing that the mother's fixed belief created a psychological risk.
• 30:11
  SPEAKER_00: The court did not order the change of residence, but neither did it accept the mother's primary no-time position.
• 30:20
  SPEAKER_00: So the child ultimately remained living with the mother, but was ordered to progress to overnight time with the father.
• 30:28
  SPEAKER_00: All of this to say, don't turn any of these cases into a hard and fast formula for your own.
• 30:36
  SPEAKER_00: There's different facts, different evidence, different statutory contexts for older cases, different children, and all of that's the point.
• 30:46
  SPEAKER_00: Saying to anyone that I'm dysregulated or I'm traumatized does not at all tell us what orders a court would potentially make.
• 30:57
  SPEAKER_00: So if your psychological response is part of the case, one of the most important distinctions could be: are you afraid because the family violence is continuing?
• 31:07
  SPEAKER_00: Or are you currently safer but your nervous system is reacting as though the original harm is happening again?
• 31:14
  SPEAKER_00: Or both?
• 31:15
  SPEAKER_00: Is there ongoing coercive control, threats, stalking, harassment, breaches or other current conduct?
• 31:22
  SPEAKER_00: If so, we need to identify it.
• 31:25
  SPEAKER_00: If the external environment has materially changed, but you remain severely affected by historical trauma, that matters too, but they're obviously not the same proposition.
• 31:36
  SPEAKER_00: And if you want your legal team to understand why your psychological response matters to the parenting orders, then you need to ask them their view on the connection between those two things.
• 31:49
  SPEAKER_00: So asking, how is the family violence history and its current impact on me being considered under the best interests and safety framework?
• 32:01
  SPEAKER_00: Or are you distinguishing between current safety concerns and the psychological effects of historical harm?
• 32:10
  SPEAKER_00: Or what evidence do you consider relevant to my current functioning?
• 32:17
  SPEAKER_00: Or how does my functioning interact with your assessment of parenting capacity?
• 32:25
  SPEAKER_00: Or what safeguards are realistically available?
• 32:29
  SPEAKER_00: Don't assume what your legal team is thinking, don't assume how they might be using any of the information.
• 32:37
  SPEAKER_00: You need to ask.
• 32:39
  SPEAKER_00: And as we mentioned in last week's episode, you don't need to remain traumatized or unwell to protect your case.
• 32:48
  SPEAKER_00: Don't make decisions about whether to recover from trauma on the assumption that remaining traumatized is going to protect your family law position.
• 32:58
  SPEAKER_00: I can't tell you what effect treatment for trauma will have on your individual case.
• 33:05
  SPEAKER_00: Your lawyer could advise you about the legal implications.
• 33:10
  SPEAKER_00: Your treating professionals can advise you about the treatment, and of course, none of that, you know, erases the history.
• 33:19
  SPEAKER_00: Recovery doesn't erase the history.
• 33:22
  SPEAKER_00: Improved regulation does not prove that the original harm was trivial.
• 33:28
  SPEAKER_00: And building a case around continued incapacity can create an obvious problem.
• 33:35
  SPEAKER_00: So again, we don't need to stay harmed and traumatized in order to prove that somebody harmed and traumatized us.
• 33:44
  SPEAKER_00: What we do need to get good at is using our lawyer for the thing that they're actually the expert in.
• 33:52
  SPEAKER_00: And we can bring our knowledge, capacity, and advocacy three-step framework into this knowledge.
• 33:59
  SPEAKER_00: What do I know?
• 34:00
  SPEAKER_00: What does my legal team know?
• 34:03
  SPEAKER_00: What does the evidence establish?
• 34:05
  SPEAKER_00: What's merely alleged?
• 34:07
  SPEAKER_00: What's expert opinion?
• 34:09
  SPEAKER_00: What has been judicially determined?
• 34:12
  SPEAKER_00: What remains unclear or uncertain?
• 34:15
  SPEAKER_00: What does the current statutory framework require the court to consider?
• 34:21
  SPEAKER_00: Then we have capacity.
• 34:23
  SPEAKER_00: Can I stay sufficiently present in this conference, in this meeting, to hear advice that I might not like?
• 34:31
  SPEAKER_00: Can I ask what the legal team are referring to when they use the word quote risk instead of going down the rabbit hole and assuming that it all means disaster?
• 34:45
  SPEAKER_00: Can I tolerate my legal team telling me that an argument that I find very emotionally compelling is actually quite weak in terms of the evidence?
• 34:55
  SPEAKER_00: Can I tolerate learning that something that I thought was decisive is only actually one part of the analysis?
• 35:03
  SPEAKER_00: And then we have advocacy.
• 35:05
  SPEAKER_00: Can I make sure that my legal team actually knows the significant information that's driving my decisions, my position, what I'm seeking in interim or final parenting orders?
• 35:18
  SPEAKER_00: Can I ask them how it fits the law and the evidence?
• 35:22
  SPEAKER_00: Can I understand the case that they're actually proposing to run?
• 35:27
  SPEAKER_00: Can I ask about alternatives?
• 35:29
  SPEAKER_00: Can I make informed decisions rather than either capitulating to authority or treating every single disagreement as yet more proof that my lawyer just doesn't get it?
• 35:42
  SPEAKER_00: And specifically, when we're talking about having conversations with lawyers and barristers regarding one or more children being resistant or just point blank refusing to spend time with a parent, this is something that I have a lot of lived experience with alongside the professional experience.
• 36:05
  SPEAKER_00: That was ultimately my situation.
• 36:10
  SPEAKER_00: My child, who was about 11, I think, when all of this sort of came to a head.
• 36:16
  SPEAKER_00: So we're talking about quite a while ago now.
• 36:19
  SPEAKER_00: Over eight years ago, my child had run away from the other parent's home and was refusing to have any further contact with that parent.
• 36:31
  SPEAKER_00: In our situation, child protection became involved.
• 36:34
  SPEAKER_00: There ultimately ended up being no contact between my child and my child's father for a significant period of time before my former partner initiated legal proceedings.
• 36:48
  SPEAKER_00: But once all that got off the ground and I then sought legal advice, I was really relieved when my lawyer, who was a director at that particular firm, said to me that she thought that seeking orders in which any contact or communication was aligned with the wishes of my child, was the most appropriate thing.
• 37:18
  SPEAKER_00: And so ultimately that became a core part of what I was seeking.
• 37:25
  SPEAKER_00: Soul parental responsibility, so sole decision making, and for any contact or communication to be according to the wishes of my child.
• 37:37
  SPEAKER_00: Obviously, there were other things in the relevant parenting orders as well, but we don't need to go into all of that.
• 37:44
  SPEAKER_00: Anyone who is in the court system and has had to be supporting their legal team in drafting the orders that they're seeking knows that there can be any number of things that can be included and that can be relevant depending on your individual situation and case, and of course, depending on the specific needs of your children.
• 38:06
  SPEAKER_00: Now, my position was ultimately also supported by the various reports that were prepared by the experts.
• 38:14
  SPEAKER_00: So those reports were extraordinarily in my favour.
• 38:19
  SPEAKER_00: Despite the accusations and allegations against me, the reports were very clear in that the report writers found that there was absolutely no evidence whatsoever of any anything remotely like influencing or coaching.
• 38:36
  SPEAKER_00: Which of course had not happened.
• 38:38
  SPEAKER_00: But, you know, my former partner, like so many parents who are resisted or refused, rather than being able to self-reflect and look at what they themselves have contributed to, the rupture of a relationship, they instead turn the attention outwards and start pointing fingers.
• 38:59
  SPEAKER_00: So of course, my ex's narrative was that the relationship breakdown between him and our child was my fault.
• 39:06
  SPEAKER_00: And incidentally, my former partner's expectation was that I also needed to be responsible for the repair of that relationship.
• 39:15
  SPEAKER_00: Now, we're going to be going deeper into that topic in next week's episode.
• 39:21
  SPEAKER_00: But back to the whole lawyer barrister legal advice thing.
• 39:26
  SPEAKER_00: So, as I said, my lawyer gave me particular advice.
• 39:31
  SPEAKER_00: The reports that ended up being prepared by the experts were supportive of the position that we ultimately took, which was me seeking sole parental responsibility and that any contact and communication with my child and the other parent be according to my child's wishes.
• 39:51
  SPEAKER_00: Now, the barrister.
• 39:53
  SPEAKER_00: This is where things can get interesting because barristers don't always agree with lawyers.
• 40:00
  SPEAKER_00: That can be really frustrating, I'm sure for the lawyers, but really frustrating and confusing and irritating when you are the paying client.
• 40:11
  SPEAKER_00: Because by the time a barrister gets involved in your case, you could have a position really firmly worked out.
• 40:19
  SPEAKER_00: What you're seeking could have been decided for quite some time.
• 40:23
  SPEAKER_00: Your lawyer could be very across your case and seem very certain on what they've been advising you of, and then you can get a barrister into the mix who could be concerned about the trajectory of the case, about what case you've been running, about what you're seeking.
• 40:43
  SPEAKER_00: Now, my barrister in that situation, it's not that he was concerned, it's that he was doing what so many of them do, which was trying to be very balanced, trying to very much go down the legal risk management pathway.
• 40:59
  SPEAKER_00: So what he was wanting me to consider was what else I would put up on the table.
• 41:05
  SPEAKER_00: And particularly when there was a court hearing and he was negotiating back and forth with the barrister for the other side in an attempt to get consent.
• 41:16
  SPEAKER_00: One of the things that was put to me was, well, okay, you know, you're seeking sole decision making, you're seeking essentially no contact with the other parent, given that your child at this point wants no contact with the other parent, and you're seeking orders in which any contact or communication will be according to your child's wishes.
• 41:41
  SPEAKER_00: So, you know, hence, if the child's saying that they don't want any contact, then clearly that for at least a little while there won't be any contact happening unless and until the child changes their mind.
• 41:54
  SPEAKER_00: Now, to soften that a little bit, my barrister was suggesting, and I think this also had been a proposal from the other side, that I be required, according to a particular time frame, to communicate and engage with my former partner and provide him with specific information and updates about our child.
• 42:21
  SPEAKER_00: So not just significant illness and injury, which was what was in the orders that I was seeking, but rather like regular updates according to a particular schedule about, you know, anything and everything.
• 42:36
  SPEAKER_00: Now, when that was put to me by my barrister, anyone who knows me probably can guess what my reaction was.
• 42:46
  SPEAKER_00: And to to save you all the suspense, my reaction was no fucking way.
• 42:53
  SPEAKER_00: No way.
• 42:54
  SPEAKER_00: And can you please explain to me how on earth that's child focused?
• 43:01
  SPEAKER_00: Because it wasn't.
• 43:04
  SPEAKER_00: I knew that it wasn't.
• 43:05
  SPEAKER_00: I knew that it was all about my former partner wanting to maintain control over me and wanting to secure some kind of relationship by proxy with our child, a relationship that he had ruptured with his behaviour and his complete inability to reflect on his own behaviour and what his behaviour caused that relationship, his complete lack of insight and his lack of appropriate repair.
• 43:33
  SPEAKER_00: So, how on earth was me providing all of this personal information about our child when there was no contact between them?
• 43:42
  SPEAKER_00: How was that in my child's best interests?
• 43:44
  SPEAKER_00: Well, the response that came back from the other side was that because we were all living in the same regional area at that point in time, that what happens if they bump into one another somewhere?
• 43:59
  SPEAKER_00: And Wouldn't it be awkward for our child if their father knew nothing about them?
• 44:06
  SPEAKER_00: Yes.
• 44:06
  SPEAKER_00: That's that was the rationale.
• 44:10
  SPEAKER_00: And I was just like, what the actual fuck?
• 44:13
  SPEAKER_00: Don't you instead think it would be incredibly distressing to our child to bump into the other parent?
• 44:20
  SPEAKER_00: I mean, you know, honestly, I think our child would have fucking run for the hills in the other direction.
• 44:27
  SPEAKER_00: But let's just play along, hypothetically.
• 44:30
  SPEAKER_00: Imagine they'd bumped into one another and a conversation had ensued in which my former partner knew all the things, you know, the friendships, the how this subject was going, how that subject was going, all the rest of it, knew all of those things, despite the fact that there'd been absolutely zero contact or communication between them and their child.
• 44:54
  SPEAKER_00: Apparently, that's something that the other side were thinking was in our child's best interests for my child's other parent to still know all the things about our child, despite the fact that their relationship had ruptured and that my child was saying that they wanted absolutely nothing to do with their other parent.
• 45:17
  SPEAKER_00: So I spoke to my lawyer about that as well.
• 45:21
  SPEAKER_00: Her and I were both in agreement, and I refused to add that to the orders that I was seeking.
• 45:28
  SPEAKER_00: Now my barrister, you know, very much with the legal risk management hat on.
• 45:33
  SPEAKER_00: It's not that they weren't happy, you know, they're they're there, honestly, to follow my instructions, and I was refusing to have that particular clause added to the orders, and I explained my position very, very clearly.
• 45:50
  SPEAKER_00: But they were obviously still going down that legal risk management advice about whether or not the judge would would have concern about what we were seeking was what we were seeking, putting too much of the responsibility and the decision making onto my child, and again, you know, I just kept coming back saying, Well, he's virtually a teenager at this stage of the proceedings.
• 46:14
  SPEAKER_00: What the fuck would you have me do?
• 46:17
  SPEAKER_00: What I don't know hogtie him, somehow get him into the car to deliver him to the other parent.
• 46:24
  SPEAKER_00: I mean, let's be real here.
• 46:27
  SPEAKER_00: There's putting the decisions in the hand of a child and, you know, making the child the decision maker, and then there's actually respecting the agency and autonomy of a child who has been able to articulate themselves very clearly about why they don't want a relationship with the other parent.
• 46:47
  SPEAKER_00: I personally was of the view that respecting my child's wishes, as opposed to treating them as an imbecile who couldn't possibly know what they wanted, I believed that respecting my child's wishes was the most child-focused thing to do, was the most beneficial thing for my child.
• 47:06
  SPEAKER_00: And so that was the position that I ultimately took.
• 47:09
  SPEAKER_00: And incidentally, they were the orders that ultimately I received.
• 47:14
  SPEAKER_00: Now, important to this is that I took on board what my barrister was saying.
• 47:19
  SPEAKER_00: I took on board the legal risk management advice.
• 47:22
  SPEAKER_00: I spoke about that advice with my lawyer.
• 47:25
  SPEAKER_00: I reflected on it.
• 47:27
  SPEAKER_00: It wasn't just me having a knee-jerk reaction.
• 47:30
  SPEAKER_00: Well, I mean, I did have a knee-jerk reaction when I first heard what they had to say, but I did consider the advice.
• 47:38
  SPEAKER_00: I considered the implications of the advice, both for me, for my child, and I truly reflected on whether I thought that it was genuinely child-focused and on what the impact could be for my child.
• 47:54
  SPEAKER_00: And I made an informed decision, and that decision ultimately was the right one.
• 48:01
  SPEAKER_00: I very strongly believe that, you know, not just for my child, not just for me, but for the how the case ended up playing out overall.
• 48:10
  SPEAKER_00: And to be honest, I don't think my barrister cared one way or the other, because they're just there doing a job.
• 48:18
  SPEAKER_00: He was just there doing a job, and he did a great job.
• 48:21
  SPEAKER_00: It was his job to provide legal risk management advice, it was his job to go back and forth with the other side and put different propositions to me.
• 48:30
  SPEAKER_00: It was his job to explain those propositions, it was his job to answer my questions about them, and ultimately it was his job to move forward with what my instructions were, irrespective of whether he personally agreed with them or not, which he didn't actually ever tell me, incidentally.
• 48:50
  SPEAKER_00: But afterwards he was obviously very happy with the outcome, and this can sometimes be the frustrating thing because I'm sitting there thinking, yeah, you know, not saying that you didn't do a great job, but hey, I'm really glad I didn't follow everything that you told me.
• 49:07
  SPEAKER_00: I'm really glad that I was able to reflect, to make an informed decision, and to advocate for myself and my child.
• 49:18
  SPEAKER_00: And I've had people ask me over the years, Danielle, didn't you find that hard pushing back on something that your lawyer was suggesting?
• 49:26
  SPEAKER_00: And no, in that moment I really didn't.
• 49:29
  SPEAKER_00: And I don't know if it's because, as I've mentioned in a previous episode, my stepdad had been a family law lawyer for over 40 years, and obviously I was used to having some pretty lively debates with him, and so you know, I don't know if it's that having conversations with lawyers or people in the legal profession didn't really rattle me in general, or if it was just because I felt that I so confidently knew my own case, if it was because I had a great rapport with my lawyer and I felt that my lawyer really got it and really understood my case, if it was because the reports, the you know, the expert reports were so favourable to me and to what I was seeking, or if it was just that my barrister was actually very open to being challenged and being questioned and didn't really seem to have a preference either way, which path I went down, you know, and and that really should be how it is because the barrister has no skin in the game.
• 50:33
  SPEAKER_00: And as I've said in multiple episodes, you know, no lawyer or barrister is going to be lying awake at night worrying about your child or worrying about you, or in my situation, you know, my barrister was not going to be going at going home worried about how many, you know, information updates I was going to have to be passing on to my ex over the next however many years, you know, the next eight years until my child was an adult.
• 51:03
  SPEAKER_00: How many questions, how many, you know, I mean, truly, that was not at all, in my view, because my ex wanted information about our child for the benefit of our child in case they bumped into one another.
• 51:16
  SPEAKER_00: Fuck off.
• 51:17
  SPEAKER_00: That was about maintaining a form of control over me.
• 51:21
  SPEAKER_00: My barrister was not going to be spending his his nights worrying about any of that.
• 51:27
  SPEAKER_00: That's why I had to be the expert in my own case.
• 51:31
  SPEAKER_00: That's why I had to ask questions, and that's why ultimately I went down a different pathway instead of aligning with the proposition from the other side and with why my barrister thought that it could possibly be a good idea to throw that in there.
• 51:48
  SPEAKER_00: And you might be thinking, well, Danielle, it's easy for you to say all of that now, you know, because the outcome was favourable to you.
• 51:56
  SPEAKER_00: Yeah, but I didn't know that in the moment.
• 51:58
  SPEAKER_00: You know, when I was having to process and reflect on which way I was going to go ultimately with what I was seeking, I didn't know what was going to happen.
• 52:09
  SPEAKER_00: You know, was this particular judge going to think that my orders were inappropriate despite what was in the report?
• 52:18
  SPEAKER_00: You know, as we've said before on this episode, a judge is not bound by the recommendations of the writer.
• 52:25
  SPEAKER_00: So in that moment I took a chance.
• 52:27
  SPEAKER_00: I took a chance based on what I thought was genuinely in the best interests of my child and in myself, because truly I had no desire whatsoever to have to maintain lengthy communications with my former partner when there was no contact likely to be happening between him and our child.
• 52:51
  SPEAKER_00: And all of this to say, my barrister was not a fucking oracle, neither is yours.
• 52:58
  SPEAKER_00: They should be able to withstand you asking questions.
• 53:03
  SPEAKER_00: They should be able to answer those questions.
• 53:06
  SPEAKER_00: They shouldn't take any of that personally, they shouldn't get all huffy, because it's not their kids that we're talking about here.
• 53:15
  SPEAKER_00: Now, before we keep going, I'll quickly mention something that's particularly relevant to this episode.
• 53:22
  SPEAKER_00: If you've already been listening to this today and thinking, fuck, I actually don't really understand the family court process or the role that my lawyer, barrister, and other professionals are playing in it, as well as what I would like to, then that's exactly the kind of gap that the post-separation parenting blueprint can help you to close.
• 53:44
  SPEAKER_00: In fact, we added further information to module 13, when children resist or refuse, as part of creating this podcast series.
• 53:54
  SPEAKER_00: And I've also significantly expanded module 21, which is all about legal considerations, including more plain English information about the Australian family court process, the different people and processes that you might encounter, the difference between things like allegations, evidence, professional opinions and court decisions, and how to best use professional legal advice strategically while still understanding your own case.
• 54:23
  SPEAKER_00: Because that's really the point.
• 54:25
  SPEAKER_00: I'm not at all trying to turn you into your own lawyer.
• 54:29
  SPEAKER_00: Rather, I'm trying to help you become a much more informed client of your lawyer.
• 54:35
  SPEAKER_00: Someone who understands enough to ask better questions, to recognize when you don't really understand something, to know what information you need from your legal team, and to make decisions with the professional advice rather than simply handing somebody else the steering wheel because they know a bit more about family law than you do.
• 54:56
  SPEAKER_00: And because the blueprint has just turned one, it's currently reduced in price by almost$600, but only until midnight, this Saturday, the 3rd of October, 2026, and that is Australian Eastern Standard Time.
• 55:14
  SPEAKER_00: If this series, and particularly today's episode, is showing you the difference between being given information and actually knowing how to think with it, then there are so many modules inside the blueprint where we do exactly that.
• 55:29
  SPEAKER_00: Where we both share information but also help you understand how you can use that information.
• 55:37
  SPEAKER_00: You can find the link to the post-separation parenting blueprint in the show notes.
• 55:43
  SPEAKER_00: You can also make sure that you're getting emails about the blueprint birthday promotion and other general things that we sometimes send emails about by signing up to our newsletter, and you'll find that on the home page of the website.
• 55:59
  SPEAKER_00: And if you're listening to this and thinking, hang on a second, I think I have signed up for the newsletter, but I haven't received any emails about the birthday promotion.
• 56:08
  SPEAKER_00: You might need to come back to the website and subscribe again because you might not have checked the yes box for accepting marketing.
• 56:19
  SPEAKER_00: And you might also be listening to this episode, and it could be dawning on you that some of the things that we're talking about here is exactly why some people come to us for one-on-one coaching.
• 56:31
  SPEAKER_00: Because they just can't fucking well make sense of what's happening.
• 56:35
  SPEAKER_00: They're going down one path in their mind about what you know what they think the most important facts of their case are, but then they're confused about what they're hearing from the lawyer and all of the different pathways that are open to them.
• 56:48
  SPEAKER_00: Part of what coaching can help with is helping to make sense of all of those different moving parts so that you can make an informed decision.
• 56:59
  SPEAKER_00: And none of this is about cross-examining your barrister, although I know some of you might be tempted.
• 57:06
  SPEAKER_00: Rather, it's about being curious, saying things like, Can you help me understand specifically what is creating that risk?
• 57:14
  SPEAKER_00: Or when you say there's a risk of equal time, do you mean that it's available as an outcome?
• 57:22
  SPEAKER_00: Or is it a realistic possibility?
• 57:25
  SPEAKER_00: Or is it actually something that you consider a significant exposure in my case?
• 57:30
  SPEAKER_00: You might ask, what statutory considerations are most important to this advice that you're giving me right now?
• 57:38
  SPEAKER_00: Or how are the family violence history and current effects of that being factored into your assessment?
• 57:47
  SPEAKER_00: You might ask which concerns that you've raised are actually part of the case that's being advanced.
• 57:54
  SPEAKER_00: You might ask if there's anything that you're talking about that you're mentioning that you might be relying upon that they don't actually consider is supported by the evidence.
• 58:05
  SPEAKER_00: You could ask what effect they think the family report has had on the case and which parts of the report and the recommendations remain disputed or untested.
• 58:16
  SPEAKER_00: If they're advising you to facilitate an offer of increased time, you might ask how that actually fits with the safety or the developmental concerns that you're also advancing with your position.
• 58:28
  SPEAKER_00: This is one of the reasons why it's so important to be considering whether you and your legal team are actually running the same case here.
• 58:36
  SPEAKER_00: If they're busy advising you to facilitate or to offer more time, but you're spending your time focusing on what the safety and the developmental concerns are, you can see how those two things can seem to be at odds.
• 58:52
  SPEAKER_00: So if you've got significant safety or developmental concerns or age-related concerns with particular parenting time arrangements, but yet you're being regularly encouraged to offer increased time or to facilitate increased time, you know, that's worth having a conversation with your lawyer.
• 59:15
  SPEAKER_00: And it's not about telling the lawyer or the barrister about how to do their job.
• 59:21
  SPEAKER_00: Rather, it's about being able to instruct them really well to understand what's going on, to utilize them and their expertise, to have a really good understanding of what they're thinking of your case.
• 59:37
  SPEAKER_00: And this is very, very relevant when we're talking about children resisting or refusing time with the other parent.
• 59:45
  SPEAKER_00: And as much as it may pain me to say it, sometimes your barrister is right.
• 59:52
  SPEAKER_00: And it is important that we acknowledge this.
• 59:54
  SPEAKER_00: I don't want you becoming a loose canon with your legal team.
• 59:58
  SPEAKER_00: Sometimes you ask all the questions, you understand the statutory framework, you understand the evidence, you understand the expert report, you understand the litigation risk, you understand why your favourite argument is not as strong as you thought, and you change your position from a place of being really informed.
• 1:00:19
  SPEAKER_00: And that's good.
• 1:00:20
  SPEAKER_00: Knowledge is supposed to change when meaningful new information arrives.
• 1:00:26
  SPEAKER_00: And that's not capitulation, it's informed decision making.
• 1:00:31
  SPEAKER_00: The goal of coaching of this podcast and of the post-separation parenting blueprint is not to make you so confident that no one can ever change your fucking mind.
• 1:00:43
  SPEAKER_00: Can you imagine?
• 1:00:46
  SPEAKER_00: The goal rather is to help you participate really well in these conversations to help you listen, think, ask, understand, pressure test to allow particular expertise to matter, to also allow your own knowledge to matter, and then to make the most informed decision that you can.
• 1:01:11
  SPEAKER_00: Your barrister might be right with whatever it is that they're telling you.
• 1:01:16
  SPEAKER_00: They might be wrong.
• 1:01:17
  SPEAKER_00: They might change their mind when they fully get across your case and everything that's been submitted, or when new evidence arrives, you might change your mind on something.
• 1:01:28
  SPEAKER_00: A family report might be influential without it actually being a final judgment.
• 1:01:34
  SPEAKER_00: Your trauma might be relevant, but it might not have a significant impact on the ultimate parenting arrangement.
• 1:01:43
  SPEAKER_00: Historical family violence might matter enormously without it actually functioning as a means of limiting overnight time indefinitely.
• 1:01:53
  SPEAKER_00: Coming to consent on parenting orders might be strategically very sensible, even if it's not the outcome that you would have chosen in a perfect world.
• 1:02:05
  SPEAKER_00: And when you hear the words, quote, there is a risk, that can be important advice without meaning this particular outcome is inevitable.
• 1:02:18
  SPEAKER_00: Because your lawyer or your barrister is not an oracle.
• 1:02:22
  SPEAKER_00: They are legal counsel.
• 1:02:25
  SPEAKER_00: Use them.
• 1:02:26
  SPEAKER_00: But know that your knowledge belongs in the room too, not above everyone else's, not instead of professional expertise, but alongside it.
• 1:02:36
  SPEAKER_00: We do want to make sure it gets in the room.
• 1:02:39
  SPEAKER_00: But we also want to make sure that you and your legal team are looking at the same bloody map.
• 1:02:43
  SPEAKER_00: An important note with this episode is that I'm explaining general concepts so that you can participate more effectively in conversations with your legal team.
• 1:02:54
  SPEAKER_00: I'm not applying the Family Law Act or the cases discussed in this episode to your circumstances.
• 1:03:01
  SPEAKER_00: Similar facts do not mean that the same legal reasoning or outcome will apply.
• 1:03:06
  SPEAKER_00: So it's important that you use this episode to identify questions that you might want to take to your legal team and then use your lawyer, your barrister, your legal team to understand what the law means for your particular case.
• 1:03:22
  SPEAKER_00: Thank you so much for being here with me for this episode and for this series more broadly.
• 1:03:30
  SPEAKER_00: And as we unpacked at the start, over this series, we're not just asking why children resist or refuse time with a parent, we're also looking at what happens once they do, how their behavior gets interpreted, who gets to decide what it means, and how the adults around them respond.
• 1:03:48
  SPEAKER_00: Again, this series is not multiple episodes talking about why kids say no.
• 1:03:53
  SPEAKER_00: Rather, it's multiple episodes about the different things that can happen when they do.
• 1:03:58
  SPEAKER_00: Next week, we're going to be turning our focus on the parent who is being resisted or refused because they certainly have a part to play in whatever's going on.
• 1:04:11
  SPEAKER_00: Thank you so much for your time.
• 1:04:13
  SPEAKER_00: I'll look forward to chatting with you again soon.