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by Ruth Whisker

Unlike what you see on television or read about in gossip magazines about celebrities separating in the United States of America, in Australia divorce, property settlement and arrangements for children involve completely different court applications. An application for divorce in Australia won’t resolve any questions about who gets to keep the matrimonial home or who the children will live with.

Applying for a divorce after 12 months of separation
An application for divorce is an application to formally end the marriage. You must be divorced before you can get remarried and some registries require you to provide a Divorce Certificate if you want to change your name back to a previous name.

You cannot apply to the Federal Circuit Court for a divorce until you have been separated from your husband or wife for a period of 12 months. If you have separated but have been living together separately in the same house for 12 months, you can still apply for a divorce, but you will need separate and independent evidence that you have been “separated under one roof”.

However, if you have not been married for more than two years before the date of the Application for Divorce, you need to attend mediation with your husband/wife before you can apply for a divorce.

If there are no children or if it is a joint application, you don’t even need to attend court. However, if there are children under 18 years and it is not a joint application, you will need to attend court for your divorce hearing.

Negotiated property settlement can be finalised by Consent Orders
An application for property orders can be made as soon as separation occurs.

Ideally you should try to negotiate with your estranged spouse or partner to come to an agreement on what is going to happen with any property belonging to both of you separately and jointly and formalise the agreement by Consent Orders.

With Consent Orders, your agreement will have the force and finality of orders of the Family Court, but you will not have to attend court and the costs and time before finalisation (usually between six to eight weeks after filing the application) will be substantially less than in contested court proceedings.

What happens if you can’t negotiate a property settlement?
However, if you can’t negotiate a resolution or if there are circumstances of urgency, for example, if the other party is planning on selling an asset not in joint names, you can apply to the Federal Circuit Court as soon as you can get the forms completed.

When you actually go to court for the first time will depend on whether the matter is urgent and given an urgent listing, in which case it could be within days of filing your application. If it is not considered urgent, it will usually be listed for a first court date around six to eight weeks after you file the application.

Children’s matters best determined by negotiation with your ex
As with property matters, you can apply to the Federal Circuit Court for children’s matters at any time after separation. However, usually you will be required to prove to the court that you have attempted family dispute resolution (mediation) before filing your application for your application to be accepted by the court.

There are some limited exceptions to the requirement to provide evidence of mediation. If you find yourself needing to commence court proceedings for children’s matters, you should check with your lawyer to see if your circumstances qualify you for an exemption.

Again, depending on whether your matter is considered urgent or not, the time between filing your application and the court date could be a couple of days or up to eight weeks.

However, for children’s matters, as with property matters, it is always best to try to resolve the matter with the other parent and come to an arrangement you can both live with, even if neither of you is 100% happy with it, as the alternative is incurring costs of a protracted and expensive court case and putting yourself into a situation where an independent judge has the decision-making power and the matter is out of your control. Bear in mind that you may be even more unhappy with the judge’s decision than the arrangement you could have agreed on.

A special thank you to Contributing Author
Ruth Whisker
Divorce and Separation
Stacks Law Firm

There was a time when you couldn’t get enough of each other. You were lovers and best friends forever. You moved in together and had a couple of kids. Soon there was another bundle on the way. You got a dog and some goldfish.

The renovations started and then somehow it all went wrong. Suspicion and mistrust settled into your beautiful home. Sneaking a look at your partner’s text messages was something you never thought you were capable of doing. It really hurt when you found your suspicions realised. The vibe in the house changed from joy to a storm centre where hostile winds oscillated between passive and surly to fast and furious. Neither of you wanted to fight in front of the kids but it happened. Sometimes even when you saw their startled little faces you could not cease the fire.

Then one of you left the house, into the arms of another and that’s when the battle really took off. Both of you love the kids but your contempt for one another made you do things that hurt and confused them. You’d be late bringing the kids back, or you wouldn’t allow the other party to see them, or take them on holidays. Sometimes you just couldn’t help but say negative things about the other parent and the kids thought they were bad because of it. When the war escalated to dizzy heights you got interventions orders out on each other. Everyone felt bad: nobody was happy. With the intervention orders you both got scared and imagined yourselves in court, spending thousands of dollars and fighting with lawyers as mouth-pieces.

Then you heard about Family Dispute Resolution. You were able to proceed to the resolution process (mediation) even though you had intervention orders as both orders had mediation exemption clauses. Both of you could meet with the Family Dispute Resolution Practitioner alone to discuss how the situation was affecting you and to work out how best you were going to negotiate for yourselves in mediation. When the time came for the joint session the privacy was way better than at court or a non-profit organisation with heaps of people wandering around. The mediator was impartial and supported both of you to focus on the kids. Neither of you felt demonised as the Practitioner’s understanding of conflict was sound and she made it clear that conflict is essentially about perception, and that no one person was at fault. This allowed you to recognise that hurt and blame have their place in the chamber of broken hearts, but not when it comes to your children’s best interests.

You leave with a parenting plan that you created peacefully together and are nowhere near as out of pocket had you pursued your matter in The Family Court.

As your plan is not court ordered you may return to mediation at any time in the event of further disagreement.

1/  We have our own consulting rooms, purpose-built for mediation. This means we don’t charge extra to hire rooms that don’t always accommodate mediation needs.  We also have the additional convenience of a coffee shop downstairs.

2/  Between us, George Filipowicz and myself, we have over 30 years of experience working as Mediators; We have also undertaken extensive extra training in areas such as ‘Dealing with Difficult Personalities’ and ‘Child Focused’ practice principles to better assist our clients.

3/ Bayside Mediation offers ‘Child Inclusive Mediation’, we are one of only a handful of private practitioners that can offer this service.  Child Inclusive Mediation is considered to be the ‘Best Practice’ when working with parents whose children are old enough to have a voice in their parents’ separation.

4/ Bayside Mediation offers after hours appointments to assist busy working couples to resolve their disputes quickly.

5/ We guarantee to see a client within 7-14 days of their initial inquiry.

6/  We offer joint mediation sessions of up to 4 hours in duration. Many of our clients are time poor and want their disputed resolved quickly and efficiently. We find offering extended mediation sessions where appropriate, enables that outcome.

7/ We offer continuity of service; Our mediators work exclusively with clients from their personal intake interviews to the resolution of their issues through the joint mediation sessions.

8/ Bayside Mediation specialise in all Family Law Disputes, Financial, Property, Children, Access, Wills, and Estates. We also offer Lawyer Assisted Mediation to firms across Melbourne.

9/ We will assess and where appropriate, we will work with clients with IVO’s in place.

10/ We pride ourselves in offering clients a safe and impartial space in which to have the conversations they need to have. But if clients need separate rooms to feel safe, we can provide  shuttle mediation. We also accommodate interstate and overseas clients with mediation services via telephone, Skype or Facetime.

Separation represents a pivotal and often traumatic shift in a child’s world — and from his perspective, a loss of family. When told of the news, many children feel sad, angry, and anxious, and have a hard time grasping how their lives will change. The age at which a child’s parents divorce also has an impact on how he responds and what he understands about the new family structure. Here is a brief summary of what children comprehend at different ages and how you can help ease their transition.

Birth to 18 Months

During infancy, babies are able to feel tension in the home (and between their parents) but can’t understand the reasoning behind the conflict. If the tension continues, babies may become irritable and clingy, especially around new people, and have frequent emotional outbursts. They may also tend to regress or show signs of developmental delay.

How to ease the transition: Children this age require consistency and routine and are comforted by familiarity. Therefore, it’s helpful to maintain normal daily routines, particularly regarding sleep and meals, during and after the breakdown of the relationship. Provide your child with his favourite toys or security items, and spend extra time holding him and offering physical comfort. Rely on the help of friends and family, and be sure to get plenty of rest so you’ll be alert when your baby is awake.

18 Months to 3 Years

During the toddler years, a child’s main bond is with her parents, so any major disruption in her home life can be difficult for her to accept and comprehend. What’s more, kids this age are self-centered and may think they’ve caused their parents’ breakup. They may cry and want more attention than usual, regress and return to thumb sucking, resist toilet training, have a fear of being abandoned, or have trouble going to sleep or sleeping alone at night.

How to ease the transition: If possible, parents should work together to develop normal, predictable routines that their child can easily follow. It’s also important to spend quality time with your child and offer extra attention, and ask trusted friends and relatives to do the same. Discuss your child’s feelings (if she’s old enough to talk), read books together, and assure her that she’s not responsible for the breakup.

 

3 to 6 Years

Preschoolers don’t understand the whole notion of divorce and don’t want their parents to separate — no matter how tense the home environment. In fact, divorce is a particularly hard concept for these little “control freaks” to comprehend, because they feel as if they have no power to control the outcome.

Like toddlers, preschoolers believe they are ultimately responsible for their parents’ separation. They may experience uncertain feelings about the future, keep their anger trapped inside, have unpleasant thoughts or ideas, or be plagued by nightmares.

How to ease the transition: Parents should try to handle the divorce in an open, positive manner if possible, as a child this age will reflect his parents’ moods and attitudes. Preschoolers will need someone to talk to and a way to express their feelings. They may respond well to age-appropriate books about the topic. Kids this age also need to feel safe and secure and to know they will continue seeing their noncustodial parent (the one with whom they don’t live on a regular basis). Set up a regular visitation schedule, and make sure it’s adhered to consistently.

 

6 to 11 Years

If school-age kids have grown up in a nurturing environment, it will be only natural for them to have a fear of being abandoned during a divorce. Younger children — 5- to 8-year-olds, for instance — will not understand the concept of divorce and may feel as if their parents are divorcing them. They may worry about losing their father (if they’re living with their mom) and fantasize that their parents will get back together. In fact, they often believe they can “rescue” their parents’ marriage.

Kids from 8 to 11 may blame one parent for the separation and align themselves with the “good” parent against the “bad.” They may accuse their parents of being mean or selfish and express their anger in various ways: Boys may fight with classmates or lash out against the world, while girls may become anxious, withdrawn, or depressed. Children of either gender may experience upset stomachs or headaches due to stress, or may make up symptoms in order to stay home from school.

How to ease the transition: Primary-school children can feel extreme loss and rejection during a divorce, but parents can rebuild their child’s sense of security and self-esteem. Start by having each parent spend quality time with the child, urging her to open up about her feelings. Reassure her that neither parent will abandon her, and reiterate that the divorce is not her fault. (Likewise, parents should not blame one another for the split, but explain that it was a mutual decision.) It’s also important to maintain a regular access schedule as kids thrive on predictability — particularly during times of turmoil.

Finally, since school, friendships, and extracurricular activities are of increasing importance to kids this age, encourage your child to get involved in events and pastimes she thoroughly enjoys. Help her rekindle her self-esteem, and encourage her to reach out to others and not withdraw from the world.

By Laura Broadwell via parents.com

Why would a solicitor recommend a client use a not-for-profit Family Law Mediation service instead of a private mediation service?

It is a question that causes me to wonder at the motives of some members in our legal profession.

  • Your solicitor knows it will take several weeks for both parties to progress through the not-for-profits intake process, often entrenching the dispute and adding to the animosity of both parties. Whereas private mediation can take as little as one or two weeks for clients to proceed through the same intake process.
  • Your solicitor knows that private mediation services have significantly higher agreement rates than the not-for-profit providers. Private providers don’t shy away from working with difficult cases.
  • Your solicitor knows that a private mediation services will work much harder to get both parties to the negotiating table. Private providers will work harder to get a result.
  • Your solicitor knows that many private mediation services offer longer mediation sessions which brings a matter to conclusion much more quickly, and ultimately at less expense to the parties involved; with both Children’s and Financial disputes.
  • And then there is the question of cost. The bond a client is asked to pay a solicitor to commence proceedings, will often be far more than is needed to fund an entire mediation process through a private provider; Child Access and Finances!
    So, who stands to benefit from you using a not-for-profit provider to mediate your family law matter when you can afford a private family law mediation service?  Your solicitor.

You are significantly more likely to end up in solicitor lead negotiations and ultimately in court, if you start your mediation experience using a not-for-profit mediation service, and that is money in the pocket of your solicitor!

Private Family Law Mediation or Family Dispute Resolution facilitated by a qualified and experienced FDRP, is the quickest and most cost-effective way to resolve your family law disputes.