So you’ve separated and having some problems coming to an agreement in relation to your children. If it seems like you’re stuck and heading towards possible court proceedings in the Federal Circuit Court (family law) or the Family Law Court (more complex matters).
The first thing you are going to have to do is go to mediation. This is all part of the effort to have separating people or couples come to an agreement without the need for court proceedings and the associated costs, stress and time of the parties and the courts.
The person who runs the mediation session is called a family dispute resolution practitioner or FDR practitioner. They try to assist the parties to come to an agreement that both parties are happy with and is in the best interests of the children. The paramount concern in children’s matters is the best interest of the child.
The FDR practitioner will also work out whether it’s appropriate to do mediation and if so whether the parties can be the same room or in separate rooms, which is called shuttle mediation.
If you and the other person can come to an agreement then that can be put in writing and dated and is then called a parenting plan. There are a couple of things you need to know about a parenting plan, one is that if you already have orders in the Court they may have the effect of changing those orders so you should seek legal advice if you do have orders already. And secondly, they are not legally binding however, should you end up in Court, the Judge will consider the parenting plan as significant and showing what the parties had in their minds and intended to do at that time.
That’s right, a parenting plan is not legally binding and if one party doesn’t do what they are supposed to then you can’t ask the Court to assist you to make the other person to what they said they would do in that parenting plan.
If you wish to make that agreement something that can be enforced in the Courts that you may want to make that parenting plan into orders by consent in the Family Court (when I talk about the family Court I also include the Federal Circuit Court who also deal with family law issues).
Consent orders and the forms you need to complete can be complicated so you might want to get some assistance to write the minutes of order (which are the things that people have to do in writing). And there are some things that you can’t make as orders, e.g. orders making someone else (a third party) do something, who isn’t directly part of the dispute. The Court website does provide a DIY consent order kit should a person want to do it themselves. But please call us for specific advice if you have problems.
What if you can’t agree or cannot come up with a plan.
Then the FDR practitioner will provide you and the other person involved in the mediation, a certificate called a section 60I certificate which is named after the section in the Family Law Act. But, remember that the section 60 I certificate is only valid for 12 months and you must make an application to the Courts if you are going to make an application at all, within that time.
This allows you and the other person to make an application to the Court if needed. The certificate will include details of whether the other person turned up or whether they made a genuine effort or whether the practitioner thought it was appropriate to end the mediation for whatever reason. These are not all the reasons or information that the FDR practitioner could put on the form.
If your family dispute has escalated and your child has not been returned to you or taken from you then talk us urgently about what you can do. You may need to go to the Family Law Courts urgently.
There are exceptions to the need to get a section 60 I certificate and they are matters of urgency where the children might be at risk of physical or psychological harm or there is a real fear and the capability that the other person may attempt to take the children out of Australia or you can’t find the children. These are not all of the reasons why a person might want to go to Court very quickly and without going to mediation. We highly recommend that you seek specific legal advice in relation to your particular circumstances if you are facing these types of situations.
As with all of our posts on our website, the information is general in nature and does not cover all of the possible scenarios or laws that might be relevant to the different facts of everybody’s individual circumstances.
If you need specific legal advice based on your unique circumstances then please contact us and we will attempt to help you and if we can’t we will try and get somebody who can.
Stephen Gibbons