Communication with an ex-partner or spouse following separation can be particularly draining. Emotions are charged and modern communication methods make it easy to put in writing (and hard to delete) all your thoughts about your ex’s shortcomings. Time and time again Family Law practitioners see complaints about communication in the context of Family Law disputes and poor communication from one or both parties can significantly hamper progress in Family Law matters.
Effective, appropriate communication is not only practical; it aligns with key principles of the Family Law Act 1975 (Cth) and can materially influence dispute resolution processes, parenting outcomes and Court determinations. Here, we talk about how to engage in effective communication post-separation and some of the common pitfalls we see.
The Problem with Poor communication
Under Australian Family Law, parties are encouraged to resolve disputes cooperatively and, where possible, without litigation. Poor communication can undermine this objective and may:
- Escalate conflict and delay resolution
- Affect the success of family dispute resolution (FDR)
- Be relied upon as evidence in Court proceedings
In relation to parenting issues, Section 60CA of the Family Law Act 1975 (Cth) provides that the best interests of the child are the paramount consideration in parenting matters. Communication between separated parents is relevant to this assessment. The Court may consider:
- Each parent’s ability to facilitate and support the child’s relationship with the other parent
- Whether a parent shields the child from conflict
- The level of cooperation demonstrated in day-to-day parenting communication
Negative, hostile or obstructive communication may adversely affect a party’s position in parenting proceedings. The Court regularly see communication used as evidence against one or both of the parties and, sometimes, that communication can have significant legal consequences and implications. This is particularly the case in matters involving children, where the communication between parents is seen as an important factor in determining what arrangements are in the best interests of a particular child.
There have been some cases in which a party’s poor communication towards the other parent has been used as evidence that parties cannot collaborate about parenting decisions and has resulted in Orders for the other parent to have sole decision-making responsibility over children.
Given the significance of the potential outcomes, parties should therefore always assume that any communication, written or verbal (noting that there are circumstances in which verbal communication can legally be recorded and used as evidence), may ultimately be scrutinised by lawyers, mediators or the Court.
Reframing Communication After Separation
Once separation has occurred, communication should no longer serve an emotional or relational purpose. It should be neutrally worded and purposeful. From a legal standpoint, communication should be limited to matters that are necessary, relevant and (where there are children) child-focused, including:
- Parenting arrangements and changeover logistics
- Decisions relating to a child’s health, education and welfare
- Financial matters requiring coordination
- Compliance with parenting plans, binding financial agreements or court orders
This approach is consistent with the legislative emphasis on reducing conflict and encouraging cooperative post-separation arrangements.
Our view is that the use of clear, concise and neutral communication is the best way forward and the avenue least likely to enflame conflict or land you in Court.
Some “rules” to remember are:
- Avoid lengthy communications, where possible. “Noted” is sometimes enough to avoid being brought into conflict while also indicating to the other party that the communication has been received and read.
- State facts rather than opinions, for example “I have seen…” rather than “you are”…
- Avoid blame, inflammatory language or personal criticism.
- Keep messages focused on one issue at a time rather than conflating issues to get your point across.
- Avoid becoming engaged in conflict even if what the other party is saying is not correct. You don’t always need to argue and be “right”.
- Communicate only about agreed or necessary matters.
- Limit communication to reasonable times.
- Avoid excessive or repetitive messaging.
- Decline to engage with provocative or irrelevant communications.
- Respond within a reasonable timeframe to communication from the other party.
These rules help to reduce the risk of escalation and demonstrate a capacity for reasoned, responsible engagement — a factor that may be relevant to the Court’s determination in both parenting and property matters.
Of course, this is easier said than done. When emotions are involved and when you disagree with how someone is acting, it is hard to logically look at a situation without a blame mindset and remember that two people can have two different perceptions of one incident. Therefore, here are some examples of how communication can be reframed with the above in mind:
- “Suzie doesn’t like seeing you. You’re doing something wrong” to “I have observed that after Suzie returns from your care, she is quite unsettled. Can we discuss how to make transitions easier?”
- “That never happened. You are a liar” to “that’s not how I remember this incident but I don’t see the benefit in arguing about it.”
- “You yelled at James” to “James reported to me that you yelled at him and this was upsetting. What happened? We should talk about aligning our discipline strategies between our homes so we are both on the same page”.
As you will see, the above language is more neutral and less inflammatory.
Communication Methods and Record-Keeping
In high-conflict situations, written communication is often preferable to verbal exchanges. Written communication:
- Allows time for considered responses
- Reduces emotionally reactive exchanges
- Creates a contemporaneous record of discussions and agreements
- Helps to avoid misunderstandings and arguments
However, even written communication is not fool-proof. For example, text messages can easily become a tool for conflict engagement – they are easy to send and it’s easy to send multiple messages at a time. Where there is conflict, email communication is often less likely to be a tool for arguments as they are generally not so accessible and sending multiple emails one after the other is more difficult.
Where communication is particularly tough, structured communication tools or parenting apps may assist in keeping communication child-focused and organised, particularly where there is difficulty communicating directly. Applications such as Myfamilywizard are often recommended by the Courts as communication methods as they often have an in-built tone checker and it is difficult to delete records of communication.
In addition to specialised communication platforms, parenting co-ordinators can also be useful in assisting parents manage their disputes, moving towards increased co-operation and focusing their communication on the children.
When Direct Communication Is Not Appropriate
In some circumstances — including where there is high conflict, a power imbalance or family violence — direct communication may not be appropriate or safe.
Alternative arrangements may include:
- Participation in family dispute resolution with safeguards
- Communication through legal representatives
- Use of third-party or monitored communication platforms
- Formalising arrangements through parenting plans or court orders
Early legal advice is critical in these situations to ensure communication arrangements are appropriate and legally protective.
Conclusion
From an Australian Family Law perspective, communication after separation should be deliberate, restrained and focused on practical outcomes. Parties who communicate clearly, respectfully and in a child-focused manner are more likely to resolve disputes efficiently and minimise the emotional and financial cost of ongoing conflict.
While emotions may persist following separation, legally appropriate communication supports compliance with the Family Law Act, promotes the best interests of children, and assists parties in moving forward with greater certainty and stability.
Further reading
elringtons lawyers regularly provide legal advice in relation to a range of Family Law matters. Please contact our Family Law Team for more information or to make an appointment call (02) 6206 1300
