Separation is often an emotional and stressful time for all parties involved, including the children.
It is common in family law matters for one parent to believe that they should automatically be entitled to a week on, week off arrangement or that a child should spend more time with them than their other parent. The main consideration in family law is what is in "the best interests of the children". Unfortunately, the answer to this question does not always match up with what you, or your former spouse may think.
It is therefore important that when discussing children arrangements you and your former spouse remain focused on what is best for each individual child and keep the children out of any legal proceedings or discussions about the separation.
In order to help you during these early stages, here's a brief summary of the steps you can expect to work through.
Mediation is a mandatory step under family law legislation and one of the first things separating couples should look to arrange before even considering issuing any Court proceedings. This can be done through various government funded organizations or with a private mediator of your choosing. If an agreeement can be reached at this stage, it is likely that a parenting plan will be drafted and signed by both you and your former spouse.
While mediation is strictly between the two parties and does not involve legal representation, we recommend that you obtain legal advice prior to any mediation. This will give you an understanding of the realistic legal options available and you will also be better equipped to negotiate a fair outcome with your former spouse.
It is important for you to be aware that Applications to the Court can be made without mediation attempts under exceptional circumstances, such as in situations where a child is at risk, including where a parent refuses to handover a child or where there are concerns about abduction, violence or substance abuse. This is not an exhaustive list and there may be other situations under which mediation is not the appropriate course of action. The mediation service will be able to advise you of this when you apply for mediation.
If the matter is unsuitable or unable to be resolved at mediation, the mediation service will provide you with a certificate as evidence that mediation was attempted.
A parenting plan is not a legally binding document, rather it is an informal agreement between parents. Should one of you break the terms of your agreed parenting plan, there is very little the other can do about it.
The only way for an agreement to become legally binding is for the parenting plan to be converted into a court document called 'Consent Orders'. This involves you and your former spouse making a joint application to the court, seeking that the arrangement you have reached be converted into a formal court order.
Consent Orders are generally the preferred method to resolve children's matters as they are cost effective, legally binding, and importantly, they can lead to a more harmonious and less disruptive routine for both the children and parents involved.
It is important at this stage that both parents obtain legal advice to ensure that any Consent Orders are drafted with proper wording and clauses to avoid any complications or misunderstandings.
If you are unable to reach an agreement at mediation, this does not necessarily mean that the matter will proceed to court. You are still able to negotiate an out of court arrangement with your former spouse through further negotiations.
As with prior to mediation, we would strongly recommend obtaining legal representation during these negotiations to ensure that you are receiving realistic advice and guidance as to what are suitable arrangements for the children.
If you still cannot reach an agreement despite ongoing negotiations then unfortunately there may not be any other option but to issue proceedings. You can do this in either the Federal Circuit Court of Australia or the Family Court of Australia and the process involves asking the court to make orders for you as to what is in the best interests of the children.
This can often be a costly process, and contrary to popular belief, it does not mean your matter will go straight to a trial. The court will attempt to resolve your matter at various stages of the court proceedings, if possible, and will only revert to trial proceedings if an agreement still cannot be reached.
When discussing child arrangements after separation, it really is in the interests of both parties to try and come to a successful arrangement as early as possible as it will save the unnecessary time, stress and expense that often occurs when this process is drawn out.
Practice Area: Family Law