For children, the separation of their parents can be a stressful and emotional experience. They may feel uncertain about what will happen and where they will live. The stress of a child can be much worse where there is parental conflict and/or where the child feels compelled to choose between, or carry messages between, their parents.
The Family Law Act focuses on the needs of the child and their parents’ responsibilities, rather than the “rights” of parents. The paramount consideration is the best interests of child, and in
determining what is in the child’s best interest, the Court must consider all matters relevant to the child’s circumstances, some of which include:
- The arrangements which would protect the child from physical and psychological harm, exposure to abuse, neglect and family violence.
- The benefit to the child of having a relationship with each parent and other significant people including grandparents, stepparents and extended family.
- The developmental, psychological, emotional and cultural needs of the child.
Court is not always necessary. We aim to help you avoid Court if possible.
Some parents can reach an informal agreement about their children without any assistance, while others attend mediation – also known as Family Dispute Resolution (FDR), and have their agreement documented with a parenting plan.
There are many inexpensive FDR providers, including the following:
Family Relationship Centres | Family Relationships Online
Family Dispute Resolution | Centacare Catholic Community Services
A parenting plan is not legally binding, but it is still a very valuable document, and one which the Court will consider in the future, if a dispute arises.
Parents often choose to formalise their informal agreement or parenting plan by asking the Court to make “Consent Orders” which are legally binding.
If you cannot communicate or negotiate directly with the other parent, we can help you. If an agreement is reached, we can help you obtain legally binding Orders by consent.
When making parenting arrangements after separation, you should consider the following:
- Will the child live with each parent equally? - If not, who will they live with?
- When will the child communicate and spend time with each parent – including special occasions and school holidays.
- Where will the child attend school (and/or daycare).
- When and how will the child communicate or spend time with significant people such as grandparents and extended family?
There are many other important matters to consider, such as making decisions about long-term issues such as health care, and how the parents will communicate with each other.
Sometimes Court cannot be avoided – such as if there are safety concerns or other urgent issues, or you may have been served with Court documents from the other party. We can help you and guide you through the Federal Circuit and Family Court of Australia process. It is extremely important that you obtain expert legal advice as soon as possible, as delays will often damage your case.
FAQS
If you have been unable to reach an agreement with the other parent to see your children, you should first attempt mediation.
If mediation is not successful, or if the other parent does not reply to letters from the mediator or refuses to participate, you will be issued with a certificate.
We can assist you in applying for Court Orders to spend time with your children when you have a certificate from mediation or when urgency permits an application to be made to the court without a certificate. These circumstances are very limited and you should seek legal advice.
Mediation is a very useful child-focused process which may assist parents to resolve issues (or at least to narrow down the disputed issues) about the children.
There are numerous mediation providers in Adelaide and metropolitan areas. Costs will vary between mediation providers. The Family Relationship Centres are funded by the government to provide mediation services.
There is usually a waiting period before you can have your first appointment with the mediator, so the sooner you contact mediation, the better!
The first appointment with the mediator is known as an “intake interview”. The mediator will discuss your circumstances and what you are seeking, then write to the other parent inviting them to attend mediation. If the other parent responds, an intake interview will be arranged for them.
After the intake interviews, if the mediator believes that mediation is appropriate, joint mediation appointments will be made.
You can choose not to be in the same room with the other parent during mediation – this is known as a “shuttle mediation”.
There are some circumstances where mediation is not appropriate and this is a decision made by the mediator. If this is the case, a certificate will be issued.
If you reach an agreement with the other parent, either between yourselves or through mediation, we can assist you to formalise the agreement with legally binding and enforceable orders.
It is not necessary to have binding orders and it depends upon your circumstances whether it is best for you to have orders. You should seek legal advice as to whether your particular circumstances would benefit from having orders in place.
It can be heartbreaking for grandparents when there is a relationship breakdown and they are subsequently prevented from seeing their grandchildren.
You should seek legal advice if you are prevented from spending time with your grandchildren, particularly following the parents’ separation, if you previously had a good relationship with your grandchildren and spent a lot of time with them.
As with any other application to the court in relation to children, the grandparents will need to attempt mediation first. If the parent/s of the children do not participate in the mediation, the service provider will issue a certificate to state that mediation has been attempted.
You should seek urgent legal advice if the other parent has taken your children from the state, or even from the Adelaide metropolitan area, without your consent.
We can advise you about applying for a recovery order for the children to be returned, so that they can maintain a relationship with you.
You should seek legal advice URGENTLY, as any delay will diminish your legal position.
An urgent application to the Federal Circuit Court for a recovery order does not require you to attempt mediation first.
If you do not know where the children were taken, you can seek a commonwealth information order for departments such as Centrelink and Child Support Agency to provide an address for the children, so that documents can be served on the other parent.
Failing to follow Orders made by the court is known as “contravening” (breaching) Orders. If the other parent has contravened the orders without a “reasonable excuse”, there may be serious consequences.
You should obtain legal advice before making a Contravention Application to the court. If the Orders were made more than 1 year ago, you will need to attempt mediation before applying to the court (unless the matter is urgent – e.g. the children have been moved interstate without your consent).
