consent orders Archives -

Sep 13

Family Court Process: The Latest 2024 Update

By Mediations Australia Family Law, binding financial agreements, consent orders, Mediation, parenting plans, prenups, Property Settlement

The Family Court Process

The family court process in Australia is a formal legal avenue used when parties are unable to reach an amicable agreement through alternative methods such as parenting plans, consent orders, or financial agreements. This process, which also handles cases involving breach of family court order, is typically initiated in the Federal Circuit and Family Court of Australia and is governed by specific legal rules and procedures.

It’s important to note that court proceedings are generally considered a last resort, only pursued after all other efforts to reach an agreement have been exhausted, including attempts through legal representation and mediation. The court strongly encourages parties to explore alternative dispute resolution methods, particularly mediation, before resorting to litigation, especially for matters related to property division and parenting arrangements.

The Family Court System

If legal action is taken in the Federal Circuit & Family Court of Australia, the following is a synopsis of what will happen and how the court procedure will work (as opposed to an out-of-court settlement).

On September 1, 2021, the Federal Circuit and the Family Court of Australia merged to form the Federal Circuit and Family Court of Australia (FCFCA). The Family Law Rules are the current set of rules that regulate the family court system.

As a result of the merger, the family law system has experienced considerable structural changes. There is now a single point of entry into the court system for all actions, as well as a new case management pathway, synchronized family law norms, and a greater emphasis on pre-action procedures and dispute resolution (mediation). In other words, the court has once again emphasized the importance of mediation to resolve family law dispiutes.

The new system’s main purpose is to produce a more efficient justice system that aids parties in moving through the process as quickly, safely, and fairly as possible.

The Next-Generation Case Management System

The following case management method will apply to all applications presented in the Federal Circuit and Family Court of Australia, with the exception of those designated to specialised lists such as the Covid-19 List, the Evatt List, child support, child maintenance, and divorce proceedings.

All problems that cannot be resolved through the new case management pathway will be scheduled for a Final Hearing within 12 months of the proceedings beginning.

At the initial court appearance, the Court will triage the case, validate that the pre-action procedures were followed, and establish a case management strategy for the case.

In parental matters, the Court will order the creation of a Child Impact Report and, if needed, the appointment of an Independent Children’s Lawyer. After obtaining the Child Impact Report, the Court may schedule an Interim Hearing and subsequently a compliance check. After then, the court may issue orders compelling the parties to appear before a dispute resolution hearing. If conflict mediation is not appropriate or does not resolve the dispute, the Court will convene a compliance and readiness hearing before setting a trial date.

The Court may impose orders requiring full and open disclosure, the compilation of assessments in cases where property value is challenged, and attendance at mediation in financial procedures. When necessary, the court will evaluate whether the matter is appropriate for arbitration. If the disagreement cannot be addressed through mediation, the Court will hold a compliance and readiness hearing, after which a trial date will be determined.

What exactly is an application?

An initial application may seek interim and ultimate orders. If just final orders are filed, the court will not make any orders until the Final Hearing. In most parenting situations, the applicant will seek interim parental orders. In most property proceedings, interim orders are not required unless there are severe difficulties that must be resolved before the Final Hearing.

A parenting application must be accompanied by an affidavit and a Notice of Risk.

A financial application must include an affidavit and a financial statement.

Several new documents must be filed with an application for parental or financial orders under the new system, including the following:

A genuine Steps Certificate certifying the Applicant has followed the pre-action procedures for parenting and/or financial proceedings is required before filing.
A parenting questionnaire, a financial questionnaire, and a vow to keep information about parenting and/or money concerns confidential.

The documents indicated above are in addition to those required when requesting parenting or financial orders.

What are the Pre-Action Procedures under the Family Law Rules?

Pre-action procedures have the purpose of requiring parties to exhaust all opportunities for resolving the problem, or at the very least narrowing the issues that require a judicial ruling, before going to court.

Anyone filing an application, anyone responding to an application, and their lawyers are all subject to the pre-action procedures.

Parties should not take legal action unless all pre-action conditions have been met, which include the following:

Participation in the Resolution of Disputes (section 60I certificate)
Negotiation with the other side and the possibility of a correspondence-based settlement;
Exchanging a notice of intent to launch proceedings that includes the following information: the issues in dispute;
a settlement offer;
and the orders sought if proceedings are initiated
Genuine attempts to settle the issue;
adherence to the obligation of disclosure.

The usual exceptions to the pre-action procedures include genuine urgency or the inability to complete the preceding acts safely.

When applying for parental or financial orders, the applicant must present a genuine steps certificate verifying that they followed the pre-action processes and made a genuine effort to resolve the conflict.

The Court may impose costs on the non-complying party or, where appropriate, their counsel if they fail to follow all of the pre-action proceedings.

The Court will evaluate each party’s compliance with the pre-action steps when deciding the case management pathway of a matter. If a party fails to follow a pre-action procedure, for example, the court may refuse to proceed with the application until the non-compliance is resolved.

What is the obligation to disclose?

Parties shall offer complete and open disclosure of all relevant facts about the issues under dispute.

The obligation of complete and open disclosure must be met prior to the start of judicial proceedings.

Among the records that must be produced in financial matters are a list of assets, obligations, superannuation, and all papers in that party’s custody and control relating to the property pool, each party’s financial status, and any other document relevant to an issue in dispute.

In parental issues, all medical reports, school reports, other types of reports etc related to a contested issue, must be disclosed.

Failure to provide timely and thorough disclosure to the other party can result in serious consequences, including contempt of court.

What should I be aware of when it comes to the new Family Law Rules?

Before initiating an application, you must make a genuine effort to address the problem by doing the following things, according to the new family law standards:

In the absence of a valid exception, attendance at mediation and dispute resolution;
settlement talks and investigation;
Follow all disclosure guidelines;
Send each other a notice of intent to start legal action as well as a settlement offer.

If you do not follow the procedures outlined above before filing an application, you may face serious consequences, including the enforcement of costs orders against you and your lawyer.

What Is an Interim Hearing?

While the parties wait for the Final Hearing, an Interim Hearing permits them to resolve any pressing issues through interim orders. The orders are only meant to be temporary until the Court has had a chance to evaluate all of the evidence, hear cross-examination from the parties, and convene a Final Hearing.

Interim hearings usually take no longer than two (2) hours. At an Interim Hearing, a Judge’s decision will be based on the parties’ affidavits and any other independent evidence they offer to the court (e.g. reports or subpoena records). Cross-examination (oral evidence) is not permitted at the Interim Hearing unless there are exceptional circumstances and for a specific cause.

At an Interim Hearing, the Court is not in a position to make determinations (findings) about the facts of the case (i.e. what is true and what is not true).

Simply said, a court cannot decide whether party A or party B is telling the truth when they differ about the truth of a fact or facts in a case (these are known as disputes of fact).

As you might expect, when a case goes to court, the parties frequently have significant factual conflicts as a result of conflicting charges leveled against each other. This puts a Judge in a difficult position during an Interim Hearing because they must make a decision (Judgement) based on the evidence presented to them and issue temporary orders until the majority of the facts are disputed at a Final Hearing (which might take twelve to fifteen months or longer). At an Interim Hearing, the Judge is expected to make a decision based on the acknowledged facts, as well as any independent material that has been provided, and assign it the proper weight.

This implies that in a parenting matter, the Courts carefully consider any claim made by one party against the other that, if true, would make the Court concerned about the safety of the children in that party’s custody. As a result, if the parties have serious factual disagreements, the Courts will always move cautiously in the orders they issue in an Interim Hearing to safeguard the children from physical and/or psychological harm until the parties’ evidence can be ‘tried’ at a final hearing. When a party presents independent evidence to back up their claim, the Court is more inclined to accept the claim seriously. In any situation, the child’s best interests take precedence above the interests of each of the parties. This does not mean that the Judge has already decided whether a party’s allegation is true; rather, the Court will always err on the side of caution until it has had the opportunity to thoroughly examine all of the evidence, listen to the parties’ cross-examination, and make decisions on the facts of the case at a Final Hearing.

Orders for the children’s living arrangements, the occupation of the matrimonial home, interim spousal maintenance, litigation funding orders, injunctions to protect property, and orders to progress the case, such as the appointment of an Independent Children’s Lawyer and the preparation of a Family Report, may be made at an interim hearing.

What is an independent children’s lawyer’s role?

A lawyer appointed by the court to advocate the best interests of children is known as an Independent Children’s Lawyer (ICL). An ICL is appointed if the Court deems there are good reasons for their appointment.

Allegations of child abuse, concerns about the parties’ mental health and/or parenting capacity, religious and cultural issues, where one of the parties is not the biological parent of the children, where an older sibling is rejecting one parent, where there is a proposal to separate the siblings, or where the parties are in intractabl are the most common reasons for appointing an Independent Children’s Lawyer.

The ICL does not take orders from the children, but rather represents their theoretical best interests by conducting their own investigations, separate from those conducted by the parties, and arranging for the preparation of certain reports that will assist the Court in determining what orders are in the best interests of the children.

What is a Family Report’s purpose?

The Family Report process begins with an interview with the parties, their children, and their significant others, followed by a detailed report in which the psychologist or family consultant draws conclusions and makes recommendations based on those conclusions about what orders are in the best interests of the children.

The Family Report Writer may be designated by the Court or by the parties jointly (a report writer will only be appointed by and paid for by the court if the parties financial circumstances are such that the Court deems that they are not in a position to pay for the Family Report).

The Family Report is a very essential piece of evidence in general, according to the Court. It is frequently the only (or one of the few) independent pieces of evidence the Court has at an interim hearing stage to guide them as to what interim orders are in the best interests of the children until they can examine all of the evidence in detail at a Final Hearing.

At a Final Hearing, the weight given to the Family Report will vary depending on what each party says during cross-examination of the report writer and if the Court accepts the report writer’s findings.

The Court is not obligated to follow the report writer’s recommendations and make orders based on them. The Court will make its own decision after hearing all of the evidence at a Final Hearing, which may or may not differ from the family report’s conclusions and recommendations.

The Final Hearing

The Final Hearing is conducted by a judge from Australia’s Federal Circuit and Family Court. Prior to the Final Hearing, the parties and witnesses will file affidavits. During the Final Hearing, the parties and all other witnesses, including the family report writer, will testify and be cross-examined about their Affidavits’ testimony. Each party will retain a Barrister to lead the proceedings at the Final Hearing. The Barristers will make submissions summarising the evidence, their client’s argument, and why the Court should give the orders sought by their client at the conclusion of the Final Hearing.

On the day of the Final Hearing, the Judge rarely makes a ruling (ex tempore). The Judge will normally reserve judgement and issue the decision at a later date, usually 2 or 3 months later.

A final hearing will be held in only 3% of cases. A case’s journey to the Final Hearing stage can take up to two years.

After a Court process has begun, the parties can negotiate a final agreement and have it formalised by the Court at any time. If this occurs, the Court will issue Final Orders based on the parties’ agreement, pending the determination of whether the orders are just and equitable (property) or in the best interests of the children (children).

Approximately 97 percent of court cases settle before a final hearing.

Reaching an agreement with your former spouse over your property may have advantages such as allowing you to make the best decisions for your situation and reducing the financial and emotional consequences of court processes. With the help of a conflict resolution service or a lawyer, you might be able to reach an agreement without going to court. At Mediations Australia, we can obviously help you.

Other Things to Consider

The Family Law Act allows you and your spouse to finalise your arrangements through a financial agreement or consent orders if you and your spouse can agree on how your property and finances should be distributed. You must apply within one year of the end of your de facto relationship or two years of the conclusion of your divorce. You can only apply after this period if there are special circumstances and the court approves it. The Act also lays forth the fairness criteria that the court will consider when considering whether your agreement is reasonable.

If you can’t agree on how to share your property, the Federal Circuit and Family Court of Australia can issue financial orders (FCFCA). It is in your best interests to get legal advice before signing any agreement or orders to ensure that you understand your legal rights and responsibilities.

Financial Agreements

The Family Law Act permits married or de facto couples to create a legally binding agreement about their financial arrangements if their relationship ends. These provisions apply to de facto couples in Western Australia under the Family Court Act 1997. (WA).

Agreements can be signed before, during, or after the commencement of a major partnership (prenuptial agreements are sometimes used, but the formal term is financial agreement). A person cannot enter into a new financial arrangement if they are a party to another legal and current one. If you want the agreement to be legally enforceable, you must both have your own lawyer who has given you separate legal and financial advice before signing it.

Consent Orders

A consent order is a written agreement that has been approved by the court.

You do not have to present in court to request consent orders. You have the option of hiring a lawyer to prepare the application and draught the orders for you, or you can do it yourself. There are online forms accessible.

When you sign a drafting consent order, you are expressing that you agree with the orders and that you will follow the document’s contents. If the judge approves the draughts orders, they will have the same effect as orders made after a court hearing. Property transfers or sales, spousal support, and superannuation division are all examples of financial orders that can be dealt with by consent orders.

Couples who desire to file for consent orders must meet the standards of the Family Law Act. Before issuing the orders, the court must be satisfied that they are properly prepared and that the terms of the agreement are reasonable. The court will consider the application and, if the orders are granted, each party will get a sealed consent order document as proof of approval. You will be contacted and requested to provide additional information if the court has any reservations or questions about the evidence in your application. The court will notify you if your orders are not authorized.

One of the aims of the court when issuing consent orders is to ensure that they are definitive. As a result, it is extremely difficult to reverse property consent orders. To do so, you must establish that your agreement was made through deception or fraud, or that following the directions is impractical (not merely inconvenient), or that unique circumstances involving the relationship’s children have happened.

How Long Does the Family Court Process Take?

As mentioned previously, most parenting and/or property settlement proceedings will take at least eighteen months to reach the Hearing stage. Unfortunately, some cases have been in the system for more than 2 1/2 years due to the time it takes to get a case listed for a Final Hearing.

However, the 18 to 2 1/2-year time frame does not account for any concerns of complexity that may arise throughout the court procedures, which could create further delays in the matter being scheduled for a Final Hearing. It also disregards any further interim petitions filed by the parties during the Court proceedings and prior to the Final Hearing. In family court procedures, urgent issues frequently develop, forcing a party to file an interim application (also known as an application in a case) and request a fresh Interim Hearing so that the Court can address those issues that they believe cannot wait until a trial.

These reasons could cause a three-year or longer wait for a Final Hearing.

Due to current court system delays, courts are unwilling to allow parties a second interim hearing unless there is a compelling explanation and a necessity for it.

Going to Court Expenses

Court proceedings are very expensive. Parties in the 3% of cases that make it to a Final Hearing can expect to pay between $60,000 and $150,000. This does not include any expenditures orders made by the court. Charges can sometimes escalate over this threshold due to delays and complexity.

Additionally, there are psychological expenses. This procedure can be incredibly stressful and emotionally and psychologically draining for all parties involved, particularly the children.

Finally, there are the costs of time. As previously said, court proceedings frequently take two (2) years to reach a hearing conclusion. This does not include the time spent negotiating before filing an application with the court.

We recommend that you seek legal advice from a family lawyer and carefully consider all of the costs of going to court, including not only the financial charges, but also the time and emotional costs.

What is Mediation?

Mediation is a type of Alternative Dispute Resolution (ADR), which is an out-of-court technique of resolving disputes between two or more parties. Family Dispute Resolution, often known as Family Mediation, is a sort of mediation that is specifically developed for child-related issues, property settlements, divorce, and child support.

A mediator usually assists both parties in achieving an amicable agreement. Unlike the legal process, a resolution is not determined by a Judge and imposed on one or both parties. If the parties cannot agree on a common solution, the dispute will remain unresolved.

The Mediation Process

Mediations Australia approaches each case individually, using various strategies, depending on the circumstances and people involved. We like to think of ourselves as facilitators of creative problem-solving!

Each issue must first be assessed to see if it is acceptable for mediation and, if so, what type of mediation is required.

Despite the fact that mediation is a professional subject, a typical mediation session has no established criteria. We will generally work through the following processes throughout our meetings: creating and agreeing on ground rules for the mediation, each side giving their experience, and then working together.

Advantages of Mediation versus Court Proceedings

There are various compelling reasons to select mediation as a means of resolving or narrowing a disagreement, particularly when considering the delays and costs associated with the court system:

Mediation saves you money, settles your issues more faster than the family courts, and provides you with a predictable and certain conclusion over which you have control and ownership.
No one ever ‘wins’ in the Family Court system. Many people, on the other hand, lose because of the financial and emotional costs of coming to court. A third party, who was not chosen by you or the other party, makes a decision for you, and many times both parties are unhappy with the outcome. A successful mediation will result in a mutually agreeable agreement, eliminating the risk of a Final Hearing.
Mediation is a win-win situation for both parties. It gives you the freedom to make your own choices. Mediation is a more efficient and cost-effective path to a conclusion that you control and own.

What to Do Next

Family law disputes can become worse over time. We highly recommend that you seek initial legal advice from one of our family lawyers at Mediations Australia. We offer a free initial consultation with one of our family lawyers and if necessary at that point, can arrange for you to have a further free consultation with one of our family law mediators. We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Feb 15

What is Child Custody Mediation

By Mediations Australia Mediation, Child Custody, consent orders, Family Law, parenting plans

Many people have questions about the mediation process. It is a compulsory step when there are parenting matters in dispute, hence the question, what is child custody mediation?

Separation and divorce are difficult for everyone involved: you, your ex-partner, your children, and your extended family. When emotions are high and the future is uncertain, there can be a lot of disagreement in the decision-making process, which can lead to one or both partners being unwilling to compromise or reach a conclusion that is in the best interests of the children. In this context, mediation is by far the best means of resolving parenting issues, because it can happen quickly, is inexpensive and allows you and your children to get off the emotional merry-go-round and get on with your life.

The Family Law Act 1975 (Cth) in Australia recommends that couples avoid using the courts wherever feasible and instead engage in mediation before going to court. Even if a parenting order is sought through the courts, the applicant will almost certainly be required to show that they have attempted to address their disagreements through mediation before turning to the courts for help. This is particularly the case for child custody mediation.

That said, the Family Law Courts no longer use the term “custody,” instead preferring terminology that refers to how much time a child spends with each parent and how much communication they will have. Both parents are urged to play an active role in their children’s life if it is safe for them to do so. However, reaching an agreement on subjects like health, living arrangements, income, and education can be challenging.

What is Child Custody Mediation?

Child custody mediation is a process in which separating or divorcing parents work with a neutral third party, known as a mediator, to develop a parenting plan that outlines the care arrangements for their children. In Australia, mediation is often mandatory before parties can proceed to court for parenting matters, as it is seen as a valuable tool for helping families resolve disputes and make decisions in the best interests of their children.

The primary goal of child custody mediation is to assist parents in creating a plan that prioritizes their children’s needs and well-being, while also taking into account the unique circumstances and preferences of each family. By engaging in mediation, parents can avoid the often costly, time-consuming, and emotionally draining process of litigation, and instead work collaboratively to find solutions that benefit everyone involved.

The Child Custody Mediation Process

Child custody mediation in Australia typically follows a structured process designed to facilitate open communication, problem-solving, and agreement between the parties. The key steps in the mediation process include:

Intake and assessment

The mediator will meet with each parent separately to gather information about their situation, concerns, and goals for the mediation. This step helps the mediator understand the family’s dynamics and identify any potential barriers to success.

Joint sessions

The mediator will bring the parents together for one or more joint sessions, during which they will discuss their concerns, priorities, and ideas for the parenting plan. The mediator’s role is to facilitate the conversation, keep the parties focused on their children’s needs, and help them explore options for resolution.

Private caucuses

If needed, the mediator may meet with each parent privately during the joint sessions to discuss sensitive issues or explore potential compromises. These private meetings, known as caucuses, can help the mediator gain a deeper understanding of each party’s perspective and assist them in finding common ground.

Drafting the parenting plan

Once the parents have reached an agreement on the key aspects of their parenting arrangement, the mediator will help them draft a detailed parenting plan. This plan will outline the agreed-upon terms, such as the living arrangements for the children, the division of parental responsibilities, and the processes for making decisions and resolving future disputes.

Review and finalization

The parents will have the opportunity to review the draft parenting plan with their respective lawyers, if desired, and make any necessary revisions. Once the plan is finalized, the parents can choose to have it formalized through a consent order filed with the Family Court of Australia.

Benefits of Child Custody Mediation

Child custody mediation offers numerous benefits for separating or divorcing parents and their children, including:

Child-centered focus

Mediation keeps the focus on the children’s needs and well-being, encouraging parents to prioritize their children’s best interests above their own conflicts or disagreements.

Parental control

Unlike in litigation, where a judge makes the final decision, mediation allows parents to maintain control over the outcome of their parenting arrangement. This can lead to more satisfactory and sustainable agreements, as the parents are more likely to adhere to a plan they have created themselves.

Improved communication

The mediation process promotes open and respectful communication between parents, helping them develop the skills necessary for effective co-parenting. By learning to listen to each other’s concerns and work together to find solutions, parents can lay the foundation for a more positive and cooperative relationship moving forward.

Cost and time savings

Mediation is generally less expensive and time-consuming than going to court, as it can often be completed in a matter of weeks or months, rather than the lengthy process of litigation.

Confidentiality

Mediation sessions are confidential, which means that the discussions and negotiations that take place cannot be used as evidence in court. This confidentiality can create a safer space for parents to express their concerns and explore options without fear of their words being used against them later.

Flexibility

Mediation allows for a more flexible and creative approach to problem-solving than litigation. Parents can explore a wide range of options and tailor their parenting plan to their family’s unique needs and circumstances.

Reduced stress on children

By avoiding the adversarial nature of litigation and working together to create a parenting plan, parents can minimize the stress and emotional impact of the separation on their children.

The Role of the Mediator in Child Custody Mediation

The mediator plays a crucial role in the child custody mediation process, acting as a neutral facilitator to guide the parents towards a mutually acceptable agreement. Some key responsibilities of the mediator include:

Creating a safe and structured environment

The mediator ensures that the mediation sessions are conducted in a safe, respectful, and productive manner, setting ground rules and managing any potential conflicts or power imbalances between the parties.

Facilitating communication

The mediator helps the parents communicate effectively, encouraging active listening, clarifying misunderstandings, and promoting a focus on their children’s needs.

Assisting with problem-solving

The mediator guides the parents through the process of identifying their concerns, brainstorming options, and evaluating potential solutions. They may offer suggestions or insights based on their experience but will not make decisions for the parents.

Providing information and resources

The mediator can provide the parents with information about the legal and practical aspects of child custody and direct them to additional resources, such as parenting classes or counseling services, as needed.

Maintaining impartiality

The mediator must remain neutral throughout the process, avoiding any bias or preference towards either party. Their role is to support the parents in reaching their own agreement, not to determine what is “fair” or “right.”

Child custody mediation is a valuable process for separating or divorcing parents in Australia, offering a collaborative and child-focused approach to creating parenting plans. By working with a neutral mediator, parents can avoid the adversarial nature of litigation and instead focus on finding solutions that prioritize their children’s well-being.

Mediation offers numerous benefits, including cost and time savings, improved communication, flexibility, and reduced stress on children. By participating in mediation, parents can maintain control over the outcome of their parenting arrangement and lay the foundation for a more positive co-parenting relationship.

As the importance of alternative dispute resolution continues to be recognised in Australia, child custody mediation is likely to play an increasingly vital role in helping families navigate the challenges of separation and divorce. By embracing this process and committing to working together in the best interests of their children, parents can create parenting plans that support their children’s healthy development and promote a more stable and nurturing family environment.

What steps should I take to find a mediator?

Mediation comes in a variety of forms. The use of Family Relationship Centres, Family Relationships Australia, or other public and community-based services can be cost-effective. However with these organisations there can often be significant delays getting a mediation and if your parenting matter is relatively complex, they may not have the skills to effectively mediate the issues. The other issue can be that once an agreement has been made between you and your former partner, it’s recommended that you make it legally binding. To do this, you will need to ensure that the mediator constructs the agreement that in turn, a family lawyer can draft into a legally enforceable document. We call these consent orders

The alternative to mediation is of course litigation. It’s emotionally draining, expensive and on average will take up to 3 years to resolve.

At Mediations Australia, we have a team of mediators and family lawyers who work collaboratively together.

When is mediation not an option?

Mediation isn’t always the best option, especially when family violence is involved. In such circumstances, having the assistance of a lawyer can help you deal successfully with difficult matters and defend your rights. If there are allegations of abuse, your lawyer can help you decide if the issue should be resolved in court rather than through mediation.

Should I Consult a Family Lawyer before doing Child Custody Mediation?

The most effective mediation occurs when both parties have first gotten legal guidance regarding their specific situation. You’ll be much better prepared if you know what to expect, what your alternatives are, and how a court might handle your case. By finding this out ahead of time and understanding your legal stance, both parties will be more educated and will have evaluated what they are and aren’t ready to compromise on prior to discussions.

Your lawyer can attend mediation sessions and provide you with advice as the process unfolds. When sensitive and essential matters are discussed, mediation can become emotional or tense, and having your lawyer present guarantees that you have a say and that your interests and those of your children are prioritised throughout.

At Mediations Australia, we’re well-positioned to help because we have both family lawyers and mediators who work together.

How to Go About Child Custody Mediation

Effective mediation requires planning. You can approach mediation with a more open mind, ready to listen and negotiate a mutually satisfactory arrangement, with the help of your lawyer or directly through a mediator. Remember to think about your children and their best interests, as well as the effects of conflict on them. Importantly, you should use mediation to resolve parenting difficulties rather than bringing up other marital issues.

Child custody mediation isn’t always easy, but if you remember that you’re there to find a solution for your children and follow your lawyer’s and mediator’s recommendations, you’ll be far more likely to achieve an agreement that works for both of you.

What issues can be resolved through mediation?

Living arrangements or relocation, child support, health issues, education and religion, how time will be split between parents and how school holidays will be spent, overseas travel, and the division of payments for things like after-school activities are some of the most common topics that are discussed and resolved in child custody mediation.

What is the child custody mediation procedure?

When a mediator is chosen, each parent is usually invited to a separate pre-mediation meeting to determine whether the case is appropriate for mediation. If you have hired a lawyer, they will tell you if this is the case and what choices are available to you.

Both parties can then be requested to compose a brief statement to bring to the first meeting, describing their goals for mediation.

Each mediation session can last anything from three hours to a full day. Some of the more serious difficulties may require multiple sessions to overcome. If all parties arrive prepared and eager to compromise, this is certainly hastened.

If no agreement can be reached during mediation, the mediator will issue a certificate. After then, either parent can bring a parenting case to court. If one parent fails to make a sincere effort to address the conflict if a parent fails to appear, or for any other reason, a certificate will be granted.

How Mediations Australia Can Help

At Mediations Australia, irrespective of where you are in Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, Brisbane and all other locations. WE offer a free, no-obligation consultation with a family lawyer or mediator. Get legal advice from us today!

Dec 18

Consent Orders. All Your Questions Answered. 2023 Update

By Mediations Australia consent orders, Family Law

What are Consent Orders?

A consent order is a legally binding agreement that is made between parties involved in a legal dispute and is approved by a court in Australia. It is used as a way to resolve a dispute without the need for a full trial or hearing.

Consent orders can be made in a variety of legal matters, including family law, civil disputes, and bankruptcy proceedings. They can be used to resolve issues related to property, finances, children, and other matters.

To be effective, a consent order must be agreed upon by both parties and approved by a court. It is usually drafted by a lawyer and then presented to the court for approval. Once a consent order is approved, it has the same legal force as a court judgment.

There are several advantages to using a consent order to resolve a legal dispute. One of the main benefits is that it can save time and money by avoiding the need for a full trial. It can also provide a sense of closure and finality for the parties involved, as the matter is resolved through mutual agreement rather than through a decision made by a judge.

However, it is important to note that consent orders are not appropriate in every situation. They are generally only used when both parties are willing to reach an agreement and are able to negotiate in good faith. If one party is not willing to negotiate or if the dispute is too complex to be resolved through negotiation, a consent order may not be an option.

It is also important to carefully consider the terms of a consent order before agreeing to it. A consent order is a legally binding agreement and once it is approved by a court, it is difficult to change or challenge. Therefore, it is important to seek legal advice before entering into a consent order to ensure that your rights and interests are protected.

Why Think About Content Orders?

There are several reasons why people may choose to apply for a consent order in Australia. Some of the most common reasons include:

To resolve a legal dispute without the need for a full trial: Consent orders provide a way to resolve a legal dispute without the time and expense of a full trial. This can be especially appealing in cases where the parties are able to negotiate in good faith and reach an agreement.
To provide a sense of closure and finality: A consent order can provide a sense of closure and finality for the parties involved, as the matter is resolved through mutual agreement rather than through a decision made by a judge.
To avoid the uncertainty of a trial: Going to trial can be a stressful and unpredictable experience. A consent order allows the parties to control the outcome of the dispute and avoid the uncertainty of a trial.
To maintain privacy: Trials are public proceedings, which means that the details of the case may be reported in the media or made available to the public. A consent order allows the parties to maintain privacy and keep the details of the case confidential.
To save time and money: The legal process can be time-consuming and costly. A consent order can save time and money by avoiding the need for a full trial.

It is important to note that consent orders are not appropriate in every situation. They are generally only used when both parties are willing to reach an agreement and are able to negotiate in good faith. If one party is not willing to negotiate or if the dispute is too complex to be resolved through negotiation, a consent order may not be an option.

Before applying for a consent order, it is important to seek legal advice to ensure that your rights and interests are protected. A lawyer can help you understand the process and ensure that the terms of the consent order are fair and reasonable.

Common Uses of Consent Orders

Consent orders can be made in a variety of legal matters in Australia. Some common examples include:

Family law: Consent orders can be used to resolve issues related to property, finances, and children in the event of separation or divorce. For example, a consent order may be used to divide assets, determine spousal maintenance, or establish parenting arrangements.
Civil disputes: Consent orders can be used to resolve disputes between individuals or businesses, such as disputes over contracts, debt, or property.
Bankruptcy proceedings: Consent orders can be used in bankruptcy proceedings to determine how assets will be distributed and how debts will be repaid.
Employment law: Consent orders can be used to resolve disputes between employees and employers, such as disputes over termination, discrimination, or unfair dismissal.
Consumer law: Consent orders can be used to resolve disputes between consumers and businesses, such as disputes over faulty products or services.

What are the advantages of having consent orders?

There are several advantages to using a consent order to resolve a legal dispute in Australia. Some of the main benefits include:

Saving time and money: Consent orders can save time and money by avoiding the need for a full trial. Trials can be time-consuming and costly, and a consent order can provide a quicker and more cost-effective resolution.
Providing a sense of closure and finality: A consent order can provide a sense of closure and finality for the parties involved, as the matter is resolved through mutual agreement rather than through a decision made by a judge.
Avoiding the uncertainty of a trial: Going to trial can be a stressful and unpredictable experience. A consent order allows the parties to control the outcome of the dispute and avoid the uncertainty of a trial.
Maintaining privacy: Trials are public proceedings, which means that the details of the case may be reported in the media or made available to the public. A consent order allows the parties to maintain privacy and keep the details of the case confidential.
Facilitating cooperation and compromise: Consent orders can facilitate cooperation and compromise between the parties, as they are based on mutual agreement. This can be especially beneficial in cases where the parties need to continue to work together or have ongoing relationships, such as in family law matters.

What are the disadvantages of having consent orders?

While consent orders can offer many benefits in certain situations, there are also some disadvantages to consider. Some of the potential drawbacks of consent orders include:

Limited legal recourse: Once a consent order is approved by a court, it is a legally binding agreement and it is difficult to change or challenge. This means that if one party does not comply with the terms of the consent order, the other party may have limited legal recourse to enforce the agreement.
Loss of control: In a trial, the outcome is determined by a judge or a jury. With a consent order, the parties are responsible for negotiating and agreeing to the terms of the agreement, which means that they may have to compromise or make concessions in order to reach an agreement. This can result in a loss of control over the outcome of the dispute.
Limited options: Consent orders are only appropriate in situations where both parties are willing to negotiate and are able to reach an agreement. If one party is not willing to negotiate or if the dispute is too complex to be resolved through negotiation, a consent order may not be an option.
Risk of being taken advantage of: If one party has more bargaining power or is more experienced in negotiation, there is a risk that they may take advantage of the other party and obtain an unfair agreement. It is important to seek legal advice before entering into a consent order to ensure that your rights and interests are protected.
Need for legal representation: In order to draft and present a consent order to a court, it is generally necessary to have legal representation. This can add to the cost and complexity of the process.

It is important to carefully consider the potential advantages and disadvantages of a consent order before deciding whether it is the right option for your situation. In some cases, a consent order may be the most appropriate way to resolve a dispute, while in other cases, a trial may be a better option.

How Do I Get a Consent Order?

To obtain a consent order in Australia, the following steps should be followed:

Negotiate an agreement: The first step in obtaining a consent order is to negotiate an agreement with the other party or parties involved in the dispute. This may involve discussions or negotiations with the other party or their lawyer, or it may involve the use of alternative dispute resolution techniques such as mediation or arbitration.
Draft the consent order: Once an agreement has been reached, the next step is to draft the consent order. This should be done by a lawyer, who will ensure that the terms of the agreement are clearly stated and legally enforceable.
Present the consent order to the court: The consent order must be presented to the court for approval. This generally involves filing the consent order with the court and providing copies to the other party or parties involved in the dispute.
Attend a court hearing: The court will generally schedule a hearing to consider the consent order. Both parties must attend the hearing, and the court may ask questions or seek further information before deciding whether to approve the consent order.
Obtain court approval: If the court approves the consent order, it will become a legally binding agreement. Both parties are required to comply with the terms of the consent order, and failure to do so may result in legal consequences.

Can an application for a consent order be rejected?

Yes, it is possible for an application for a consent order to be rejected by a court in Australia. The court has the discretion to decide whether to approve a consent order and will consider a number of factors in making its decision.

Some of the factors that the court may consider when deciding whether to approve a consent order include:

Whether the terms of the consent order are fair and reasonable: The court will consider whether the terms of the consent order are fair and reasonable, taking into account the circumstances of the parties and the nature of the dispute.
Whether the consent order is in the best interests of any children involved: In cases involving children, the court will consider whether the consent order is in the best interests of the children, taking into account their needs and welfare.
Whether the consent order is legally enforceable: The court will consider whether the terms of the consent order are legally enforceable and whether they are clearly stated and adequately cover all relevant matters.
Whether the parties have entered into the consent order willingly and without duress: The court will consider whether the parties have entered into the consent order willingly and without duress. If there is evidence that one party has been coerced or pressured into agreeing to the consent order, the court may reject the application.

If the court decides to reject an application for a consent order, it may suggest alternative options for resolving the dispute, such as mediation or arbitration. In some cases, the parties may need to proceed to trial in order to resolve the dispute.

Does a consent order expire?

A consent order is a legally binding agreement that is approved by a court in Australia. Once it is approved, it has the same legal force as a court judgment. As such, a consent order does not expire unless it is specifically stated to be temporary or subject to a specific time period.

However, it is possible for a consent order to be varied or terminated in certain circumstances. For example, a consent order may be varied if there has been a significant change in circumstances that affects the terms of the order. A consent order may also be terminated if both parties agree to do so or if the court determines that it is no longer necessary or appropriate.

It is important to note that the process for varying or terminating a consent order can be complex and may require legal assistance. If you are seeking to vary or terminate a consent order, it is advisable to seek legal advice to ensure that your rights and interests are protected.

What happens when a consent order is breached?

If a party breaches the terms of a consent order in Australia, the other party may have legal remedies available to enforce the order. The specific remedies available will depend on the nature of the breach and the terms of the consent order.

Some potential remedies for a breach of a consent order may include:

Contempt of court proceedings: If a party intentionally breaches the terms of a consent order, the other party may be able to bring contempt of court proceedings against them. If the court finds that the party has been in contempt of court, they may be ordered to pay a fine or may be sentenced to imprisonment.
Damages: If a party breaches the terms of a consent order and this results in a financial loss for the other party, the other party may be able to seek damages to compensate for their loss.
Specific performance: In some cases, the court may order a party to perform a specific action or to take a specific course of action in order to remedy a breach of a consent order.
Variation or termination of the consent order: If the breach of the consent order is significant or ongoing, the other party may be able to apply to the court to vary or terminate the consent order.

It is important to note that the process for enforcing a consent order can be complex and may require legal assistance. If you are seeking to enforce a consent order, it is advisable to seek legal advice to ensure that your rights and interests are protected.

How can Mediations Australia help with consent orders?

One of our lawyers can help with consent orders in a number of ways in Australia. Some of the ways in which a lawyer can assist with consent orders include:

Negotiating an agreement: A lawyer can help negotiate an agreement with the other party or parties involved in the dispute and can provide legal advice on the terms of the agreement.
Drafting the consent order: A lawyer can draft the consent order to ensure that it is legally enforceable and clearly states the terms of the agreement.
Presenting the consent order to the court: A lawyer can present the consent order to the court for approval and can represent the client at any court hearings that may be required.
Advising on the terms of the consent order: A lawyer can advise on the terms of the consent order to ensure that the client’s rights and interests are protected.
Enforcing the consent order: If the terms of the consent order are breached, a lawyer can assist in enforcing the order and can advise on the legal remedies that may be available.

It is advisable to seek legal advice before entering into a consent order to ensure that your rights and interests are protected. A lawyer can help you understand the process and ensure that the terms of the consent order are fair and reasonable.

Apr 21

Divorce Property Settlement – Your Best Options in 2022

By Mediations Australia Divorce, consent orders, Family Law, Mediation, Property Settlement

Separation from a relationship can be a traumatic and stressful experience. When a relationship ends, it’s never easy, and it’s common for people to feel adrift and unsure of what to do next. At the forefront of their mind, is often a divorce property settlement. Aside from the emotional toll, there are also financial and legal aspects to consider after separation. This all of course happens when you’re often not in a great emotional space to deal with them effectively. In this article, we give you some clarity on the path and options ahead, as well as debunk a few myths.

Divorce Property Settlement

When considering a divorce property settlement, a key thing to understand is reaching a financial agreement with your former partner, including a property settlement is a vital aspect of this process that can help you both move forward with your life. For example, if you have reached an agreement on parenting and/or property matters, you can get a ‘Consent Order’ from the Family Court of Australia to make that agreement legally binding.

Here, we’ll look at how to get a Consent Order, what to do if you and your partner can’t come to an agreement, and other family law issues to think about the following separation.

What is a Consent Order, and How does it Work?

A Consent Order is a written agreement that the Court has approved. A Consent Order can address both parental and financial arrangements such as property and care for children. In order for a Consent Order to be finalized, the Court must be satisfied that the agreement reached is both just and equitable, as well as in the “best interests” of any children involved in the relationship. Our family lawyers at Mediations Australia can help you in this regard.

What is the procedure for obtaining a Consent Order?

A Consent Order can be obtained directly from the Federal Circuit and Family Court of Australia. You run the danger of the court rejecting your application for consent orders if you don’t get competent legal guidance from an experienced family lawyer, as well as overlooking critical components of the proposed parenting/property arrangements. It’s critical that you take these documents seriously. Think of them as a contract. You wouldn’t dare construct your own contract, so be very careful about considering drafting consent orders. Once consent orders have been endorsed by the Court, it can be very difficult and expensive to have them changed.

We can assist you in preparing the Consent Order and answering any concerns you may have concerning the separation process, including property settlement issues, parenting arrangements, and other family law issues.

It’s also worth noting that initiating an application for a Consent Order for property settlement or parenting/child support issues has a time limit. The application must be submitted within the following timeframes:

For married couples, one year from the date of divorce.
De facto couples have two years from the date of separation.

Here is much more information about consent orders.

What if My Partner and I are unable to agree on matters relating to Property and/or Parenting?

There is assistance available if you and your former spouse are having trouble reaching an agreement on property or family/parenting issues. Importantly, seek the opinion of an expert family lawyer who can offer specialized guidance on how to best settle legal disputes and how to ensure that you reach a fair and equitable arrangement. It is critical to understand your legal rights and duties, as the legal system can be complicated. An initial consultation with a family lawyer will give you clarity and the beauty about Mediations Australia is that if following your free, initial consultation with our family lawyer, if there is potential to resolve the issues promptly, one of our mediators can be brought into the picture seamlessly.

In this context, family law doesn’t need to be a high conflict sport. In other words, it is far better to resolve these matters promptly. The alternative is expensive and will emotionally drain you and all those involved. The courts these days make it very difficult to litigate because they know firsthand that having a judge decide matters for you is by far the best way to get outcomes that you and your former spouse are happy with.

Here are the ways that we can assist you to resolve your matter without Litigation.

Mediation – Mediation is a process in which a mediator, who is a neutral third party, assists people in a dispute in reaching a mutually acceptable agreement with respect to the relevant issues. The outcome of the mediation is in the hands of the participants. In other words, you and your ex-spouse are in control over the outcome, as opposed to a Judge.

To enable the parties to reach their own agreement, a mediator stimulates dialogue, improves understanding, aids the parties in identifying their needs and interests, and applies innovative problem-solving strategies.

No one forces a solution on a party, unlike in court or arbitration. The disagreement will remain unsolved if all of the parties do not agree on the outcome.

If previous conversations have failed, mediation offers an alternate option to litigation. The variety of potential solutions reached during mediation is frequently wider than the remedies available in courts and tribunals, or even in long-term negotiations.

Mediation is significantly cheaper than litigation, with 90% of issues being resolved in one day of mediation.

At Mediations Australia, we can assist you with your mediation questions. Book a free consultation.

Arbitration — This normally entails a third-party (an “Arbitrator”) meeting with you and your former husband or de facto partner (and, in most cases, your legal representation) to discuss the facts and arguments in disagreement. The Arbitrator, who is usually a senior barrister or a former judge, makes a well-informed judgment about how to resolve the disagreement. Arbitration is a process in which disputants present their arguments and evidence to a dispute resolution practitioner (the arbitrator), who then renders a decision. The procedure is private and can be kept anonymous if both parties agree. Arbitration is a flexible and efficient method of settling domestic and international conflicts. The arbitral tribunal’s decision is final and binding.

At Mediations Australia, we can assist you with the arbitration.

Collaborative Law – Collaborative law is a form of alternative conflict resolution that allows both parties and their lawyers to sign a contract (the “Participation Agreement”) to finalize any legal elements of their separation or divorce without having to go to court. The procedure employs an interest-based negotiating paradigm, in which the disputants and their lawyers work together to reach a mutually advantageous conclusion based on their mutual interests. Any desires, ambitions, concerns, or anxieties could be among these interests.

Property Settlement Questions

Is the property pool valued at the time of separation or at the time of settlement or trial?

It’s a frequent fallacy that only assets, liabilities, and superannuation that existed at the time of separation are included in the property pool and that they are valued at that time. This isn’t the case at all. Any property that exists at the time of the agreement or at the time of the trial is included in the matrimonial property pool at its current market value. If you buy a house after you’ve separated, for example, the value of the house can be included in the property pool.

If you want to maintain the matrimonial house as part of the property settlement, keep in mind that in today’s market, the home may appreciate in value faster than other assets in the property pool.

Any inheritances or other windfalls you get after your divorce but before reaching an agreement will be included in the property settlement. Similarly, if your ex accrues debt after the divorce, that debt may be included in the property pool, reducing the total assets available for distribution between you and your ex.

Hence why it is essential to resolve your property settlement as soon as possible following separation.

Do property settlement disputes become more complex over time?

Your property settlement may grow more problematic as time passes following your divorce because of:

Your relationship with your ex is deteriorating. While some spouses retain a friendly connection after their divorce, this could swiftly deteriorate. If you and your ex have a good connection, you should strive to reach an agreement as quickly as feasible. You should obtain legal counsel so that you know what a reasonable offer to make to your ex is, as you don’t want to be in a position where you’re making offers that are significantly less than what you’re entitled to or that could result in an unfair outcome for you.
Expenses incurred after separation. You may want to finalize your property settlement as soon as possible if you know your ex isn’t good with money or has a habit of living over their means. This will save you from having to argue about whether your ex’s spending was acceptable and whether it should be returned to the property pool and treated as property your ex has already received in the property settlement.
Future requirements It’s likely that your or your ex’s circumstances will change after you’ve separated, affecting your property settlement. For example, if your ex is currently employed in a high-paying position but is laid off and unable to find another job, or if your ex has children with a new partner, this would be considered when determining what your and your ex’s future needs are and could affect the amount you receive in the property settlement.

What Should You Do Now?

Family law matters are complex. We recommend legal advice at the outset. At Mediations Australia, we’re early resolution focused. we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!

Apr 04

What You Need to Know About Parenting Plans

By Mediations Australia Family Law, consent orders, parenting plans

Parenting Plans: Understanding Post-Separation Living Arrangements

When a couple with a child or children divorces or ends their de facto relationship, challenges can develop as a result of the dissolution of the marriage or de facto relationship, with the most likely issue being what will happen to the children. Obviously, in family law disputes, it’s the most important consideration.

Among the most significant things to consider when parents separate are parenting agreements and parenting arrangements after separation, such as who will the children live with, when they will live with them, and where they will live with them.

There is a significant degree of flexibility about these child arrangements. The children may sometimes reside primarily with one parent and only see the other parent on a limited basis. That said, the two most prevalent configurations are as follows:

either the children who live with one parent and spend time with the other on alternate weekends and half of the school holidays;
or the children who live with each parent on a “week about” basis

What to do when setting out parenting arrangements after separation.

In practice, it is critical to consider the children and their routine before separation, as well as any changes that have occurred following separation. Consider, the ages of the children, whether or not they attend daycare or school, and extracurricular activities in your planning.

According to anecdotal evidence, children of parents who have divorced amicably and who have put in place suitable workable arrangements for their children’s care and financial support tend to have greater coping skills and resilience than children of parents who have experienced parental conflict or alienation in the past.

It highlights the importance of resolving your family law dispute quickly and it is for this reason that at Mediations Australia, we’re early-resolution focused with both family lawyers and mediators ready to help you.

Disagreements between parents and the use of mediation

There can be major delays in the following areas when there is a parental disagreement about which parent the children should live with or spend time with.

For an interim hearing, expect to wait between 3 to 8 months.

The time it takes to conduct a trial and obtain final rulings governing the custody and visitation of the children might range from 2 to 3.5 years, or even more, in some situations.

Following a hearing, it typically takes a further 4 months for the Court to issue a decision on each case.

In light of the lengthy delays in the courts, and in the event that parents are unable to reach an agreement on the children’s arrangements, we encourage parents to seek private family dispute resolution or mediation in order to try to achieve an agreement. Family dispute resolution normally is without the parties’ lawyers being present, while mediation can occur with or without the parties’ lawyers also participating.

Talk to us at Mediations Australia. Book a free consultation.

That said, in order to make the most of the chance to discuss their situation and reach an agreement, we recommend that each party seek independent legal advice prior to engaging in family dispute resolution or mediation. Our family lawyers at Mediations Australia can help in this regard.

Putting a parenting arrangement in writing

When the parties reach an agreement, they can formalise their parenting arrangement by completing and filing a Form 11 Application for Consent Orders, which can be used to address solely children’s issues or both children and financial difficulties, respectively.

To establish agreement on financial concerns exclusively, the parties can use Form 11 Application for Consent Orders, which they can complete and file without seeking orders involving parenting.

What is the impact of restraining orders on parental arrangements?

Restraining orders, which are known by different names depending on which Australian state you live in, may or may not be extended to include the children, and they are not an impediment to the parents making arrangements for the children to spend time with the other parent when they are not living with them.

A restraining order will almost always contain a provision stating that the order will not be violated if the other parent follows the terms of a parenting order or parenting plan (although this must be checked carefully to ensure that it does); and will almost always contain a provision stating that the order will not be violated if the other parent follows the terms of a parenting order or parenting plan (but this must be checked carefully to ensure that it does).

The party who is seeking a restraining order may prefer to have it extended to include the children, or they may wish to have it denied. Exceptions can be included if the parties include the children, and they can state that the restraining order will not be violated if the parties communicate via the following methods ( SMS, text message, or email).

Sometimes, one parent will make claims against the other parent, alleging that the children are at risk of harm or have already been exposed to harm as a result of the other parent’s actions, such as:

In the case of one parent who suffers from mental health difficulties, they are not compliant with recommended therapy or prescription medication;
they also suffer from substance or alcohol addiction problems; anger management issues; or family and domestic violence concerns

In this case, the court will take a careful approach and act in the best interests of the children.

What is the purpose of a Parenting Plan?

Creating a parenting plan is beneficial for the following four reasons:

This written understanding establishes the arrangements, timetable, and obligations for each parent.
Provide the child with structure and routine.
It has the potential to lessen the amount of arguments with the youngster regarding time.
It is flexible and can be modified as your circumstances change.

How many changes am I allowed to make?

Unlimited modifications. You can send your plan to your lawyer for comments and make any necessary adjustments.

In what ways are a “parenting plan” and a “consent order” different from one another?

A plan is an agreement between two or more people. An Order is a legally binding agreement that is filed with the court and treated as a formality. The difficulty with having an agreement rather than an order is that if one party decides not to follow by the agreement, there is nothing that can be done to ‘turn the ship around.’

What is the point of creating an Order rather than simply having a Plan?

Whenever a court order is in place and something goes wrong, such as when one parent fails to comply with the orders, the other parent has the option of breaching the order or requesting that the courts intervene and aid in more extreme instances.

What about the financial obligations associated with raising a child?

It is necessary to register for Child Support if you have a child who is under the age of eighteen. Child Support is a bare minimum payment towards the expense of rearing a child, and it is calculated according to a formula established by the Child Support Agency (CSA). If you wish to handle the additional costs of raising a child, such as schooling, medical expenditures, and other expenses, you can pair your Parenting Plan with a Binding Child Support Agreement, which will provide additional certainty to financial duties.

What is the difference between Parenting Orders and Parenting Plans and how do they differ?

Everyone wants the best for their children, and this is understandable. When it comes to issues involving children, the Family Courts prioritise the best interests of the children over all other considerations.

Despite the fact that it may appear straightforward, it is common for separated parents to have very diverse beliefs about what type of arrangements are in their children’s best interests. These types of disagreements concerning child-rearing, sometimes known as ‘parenting disputes,’ may be extremely stressful for both the children and their parents.

Frequently, these disagreements develop after a couple has separated and realised that their parenting techniques or priorities are drastically different. The perception of the other parent as a potential danger to the children can arise at any time for one or both parents.

When parents reach an agreement, it is critical that the agreement is documented in a formal manner, just as it would be with any other legal arrangement. In most cases, this will prevent both parties (as well as the children) from having to go through the entire procedure again and again.

Fortunately, the Family Law Act provides parents with two options for achieving this goal: a Parenting Plan and a Consent Order.

Parenting Plan

A parenting plan is a more informal document that must be signed and dated by both parents in order to be effective. The contents of a parenting plan can include items such as:

who a child will live with;
who a child will spend time with;
who will have parental responsibility for the child, which means the responsibility to make major long-term decisions for the child;
how two people will consult with each other about the decisions to be made;
who will communicate with a child; and
who will communicate with a child.

In spite of the fact that parents can create a parenting plan on their own, we urge that a parenting plan be drafted by a lawyer, or at the very least reviewed by a lawyer. Some sections of the parenting plan may have unforeseen repercussions, have loopholes, or just be insufficiently detailed.

If you have been requested to sign a parenting plan, you should consult with a lawyer before proceeding.

Parenting plans do not require the involvement of the court system and are frequently less expensive and faster. The disadvantage of a parenting plan is that if it is violated, you will not be able to enforce it in Court and will be forced to start the Court procedure over from the beginning again.

If you go to court after entering into a parenting plan, the Judge will have to look at what the parenting plan states in order to determine your rights. For example, if one spouse has violated the parenting arrangement, the Judge may enquire as to why this has occurred. Alternatively, if one parent is requesting Court Orders that are diametrically opposed to the parenting plan that they had previously agreed to, the Judge may enquire as to why.

Consent Orders

Consent Orders are the alternative option for formally establishing parenting arrangements in a legal sense.

Whenever you go to Court, what you are really doing is requesting a Judge to issue particular Court Orders on your behalf. The application to the Court can be brought jointly by both parents if they both agree on the Orders that should be made. The Court will typically issue these Orders if you have submitted all of the relevant information and your request is in the best interests of the children, as well as being fair and reasonable in nature.

In order to do so, you must prepare an Application for Consent Orders in addition to the proposed Order that you wish the Court to issue. Preparing a proposed Order can be complicated, so we recommend that you consult with a lawyer who can assist you with this process.

Parents will receive a Court Order in the form and conditions that they have requested after the Order is issued.

It is possible that court orders will be rigid, which for some parents may be a positive thing.

Parents can amend the arrangements outlined in the Parenting Orders if they come to an agreement. But if they don’t come to an agreement, the Order will remain in effect. If you have a Consent Order, you will not be able to return to Court unless you can demonstrate to the Judge that there has been a significant change in your circumstances or the child’s circumstances since the order was issued.

Furthermore, if one of the parents violates the Order, the repercussions might be severe. If the parent (the one who did not violate the Order) believes that the other parent has violated the Orders, he or she can file an Application with the Court. Judges have the authority to issue a wide range of orders to put things right, including fines, make-up arrangements, and even modifying the original Court Orders entirely.

The disadvantage of filing an Application for Consent Order is the financial and time commitment it entails.

This formal approach is more time-consuming and expensive than creating a more casual parenting plan informally.

Once your application has been submitted, you will be required to wait for the Court to consider your case, which may take some time. It is also possible that the Court will not be willing to grant the Order that you seek.

The most suitable option

The bottom line is that every situation is unique, and different situations need the use of diverse tactics. Despite the fact that parenting plans can provide greater flexibility at a lesser cost, they lack the ability to be enforced. However, while Consent Orders are more expensive and complex, they provide a higher level of enforceability in exchange.

The next step

At Mediations Australia, we can assist in all parenting dispute matters. We can assist you and your former partner negotiate and we can then assist in the drafting of both parenting plans and consent orders.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney and all other locations in Australia. We also do international family law matters.

Need some information that relates to your circumstance?

Need some information that relates to your circumstance?

Getting legal advice early is the most important thing to do.

Getting legal advice early is the most important thing to do.

Involved in a Parenting Dispute?

Getting legal advice early is the most important thing to do.

Book a Free Consultation with a Family Law Expert.

Schedule a Free Consultation with a Family Law Experts.

Unsure about your legal options? Get free initial guidance.

Book a Free Consultation with a Family Law Expert.

Book a Free Consultation with a Family Law Expert.

Need some information that relates to your circumstance?

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