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. 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. 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 Family Law Act (“the Act”) states that each parent has parental responsibility (Section 61C). This means that both parents need to “consult” with each other about “major long-term issues” (Section 61CA).
Some things that are considered “major long-term issues” include:
- Where children live
- Where they go to school
- The children’s religion
- What contact the children have with each parent
- Contact with other people (grandparents, aunts, uncles, cousins, etc.)
- Medical decisions (e.g., 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, you discuss these major long-term issues in your daily conversations. Once you separate, you need to make a conscious effort to schedule time to have those conversations as the need arises.
What needs to change?
Technically, nothing. However, in our experience, parents who are no longer living together often struggle with the living arrangements. While most can work out who the kids live with, they get stuck on the “how and when” of spending time with the other parent, communication methods, and how the kids can reach out to the parent they aren’t currently with. This can be a source of significant disagreement.
When these disagreements arise, many people’s reaction is to “go to court.” Fortunately, unless there is an urgency or a safety issue, the Act requires parents to participate in “pre-action procedures” first.
Pre-action procedures
For matters relating to children, the basic procedures are:
- Genuine Effort: You must make a genuine effort to resolve the dispute via Family Dispute Resolution (FDR) before applying to the Court.
- Qualified Mediation: You must mediate with a Family Dispute Resolution Practitioner (FDRP)—mediators registered with the Commonwealth Attorney General’s Department.
- Section 60I Certificate: The Court must not hear an application unless you have obtained a certificate from an FDRP.
The Exceptions
As set out in Section 60I(9), exceptions include:
- Applying for an order by consent.
- Reasonable grounds to believe there has been (or is a risk of) child abuse or family violence.
- Extreme urgency.
- A person has shown serious disregard for their obligations under a previous order.
The goal is to keep families out of Court. Most families reach an agreement about living arrangements, holidays, and special occasions through mediation. This agreement must demonstrate that you have considered the “best interests” of the children.
Checklist: Legal Steps
Working it out together
- See if you can reach an agreement about living arrangements.
- Have your agreement documented as either a parenting plan or consent orders.
Help from a lawyer and FDRP
- Engage a lawyer to help you prepare for mediation.
- Attend a mediation with an FDRP.
- Document the agreement (Parenting Plan/Consent Orders) and file with the Court.
No agreement or exemptions apply
- Obtain your Section 60I certificate from the FDRP.
- Work with your lawyer to prepare and file your application with the Court.
Our Team
Kelly and her team of lawyers, mediators, and FDRPs can help you with any questions you have.
Call today to schedule a meeting via Phone or Zoom: 1300 444 LAW.