We are about to separate, what are the legal things we need to know about – kids edition
Hopefully, you have read my blog that relates to practical things you will need to keep in mind when you have kids as how the practical stuff works for them is more important than the legal stuff when it comes to their long term emotional health and relationships with you both and other people. If not, the link is here.
This week’s blog is a quick and easy checklist for you to get focused on the important legal things that you will need to consider in the next few months that relate to your kids. It is a tough time in your life and theirs, so don’t be too hard on yourselves if you can’t think about the legal stuff yet.
What does separation mean legally for me as a parent?
When we have children, the law, you can find it here in the “Family Law Act” (“the act”) says that each parental responsibility (section 61C). What does that mean? It means that both of you as parents need to “consult” with each other about “major long-term issues” (section 61CA).
Some things that are considered “major Long-term issues” can be:
- Where children live
- Where go to school
- What religion the children have
- What contact the children have with each parent
- What contact the children will have with other people including grandparents, aunts, uncles, cousins, friends etc
- Whether a child should be circumcised or have their ears pierced
How will we parent now we have separated and no longer living together?
When you are living together, then on a regular basis we talk about all those major long-term issues that the act refers to in our daily conversations with each other. Once we separate, we need to make a conscious effort to make time to have those conversations as the need arises.
My next blog will talk about how to plan those future conversations.
What needs to change?
Technically nothing. However, in our experience, parents who are no longer living together struggle with the living arrangements for their kids. A lot of the time, most people can work out who the kids will live with, but they get stuck on how and when the kids will spend time with their other parent, how they will communicate with each other and how the kids can communicate with each parent when they aren’t with them. This can be the source of huge disagreements and anxiety.
When these disagreements arise, most people’s reaction is that they will “go to court” and ask the Court to make orders that they think are in the children’s “best interests” (see my blog “What does best interests of children mean?”)
Fortunately, unless there is urgency or a safety issue, the act doesn’t just let us run to Court and ask for orders. The act requires separating parents to participate in what is referred to “pre-action procedures”.
Pre-action procedures
For matters that relate to children, the basic pre-action procedures are listed below:
- Unless you fall into one of the exceptions, you must make a genuine effort to resolve the dispute by family dispute resolution before you are allowed to make an application to the Court for orders relating to your children.
- You must mediate with a Family Dispute Resolution Practitioner (“FDRP”). These are mediators who are registered with the Commonwealth Attorney General’s Department and who have completed special training.
- Unless you fall into one of the exceptions, the act says that the Court must not hear an application for orders relating to your children unless the parties have been to mediation with an FDRP and obtained a certificate under section 60i(8) of the act.
- The exceptions are set out in section 60i(9) of the act and in summary, are:
- You are applying for an order by consent
- The court is satisfied that there are reasonable grounds to believe that there has been abuse of the child by one of the parties, there would be a risk of child abuse if there was a delay, there has been family violence, there is a risk of family violence, or there has been a recent application to the court or that the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for their obligations under the previous order.
The goal is to keep families out of Court. The majority of families attend mediation with an experienced FDRP and reach an agreement about where the kids live, how they spend time with each of you and your families and friends, how they will spend time with each of you during school holidays and on special occasions. That agreement will need to demonstrate that you have thought about what is in the “best interests” of the children before the Court will make the orders that you are seeking.
If there is no agreement, and there needs to be a change, then the Federal Circuit Court and Family Court of Australia can do this after you make an application and set out the orders that you are seeking. The Court’s Central Practice Direction indicates that the Court’s goal is for most matters to be finalised within 12 months.
Check list – legal steps
Working it out together
☐ See if you can reach an agreement about the living arrangements for your children ☐ Have your agreement documented as either a parenting plan or consent orders
Help from a lawyer and FDRP
☐ If you need help, engage a lawyer to help you prepare for a mediation with an FDRP
☐ Attend a mediation with an FDRP
☐ Have your agreement documented as either a parenting plan or consent orders
☐ File your consent orders with the Court
No agreement or you fall within the exemptions
☐ If there is no agreement or your circumstances make you exempt, obtain your certificate from the FDR
☐ Work with your lawyer to prepare your application to file with the Court with your certificate from the FDRP.
Our Team
Kelly and her team of lawyers and mediators and FDRP’s can help you with any questions that you have.
Call today and schedule a meeting with us via Phone or Zoom 1300 444 LAW.
