Posts

It is essential that you outline your agreed-upon living arrangements, as well as your commitments regarding access arrangements, holidays, and vacations.

Here’s a list of the must-haves you’ll want to include:

  1. A basic residential schedule
  2. A regular visitation schedule
  3. A projected schedule for parenting time over the holidays
  4. A projected schedule for parenting time on birthdays
  5. Visitation transportation arrangements, including backup plans
  6. Neutral drop-off or access exchange arrangements (if necessary)
  7. Anticipated changes to your family’s residential access schedule (as your children age)
  8. Alternatives schedules for school holidays
  9. How changes to the schedule should be proposed and negotiated in an effort to minimise last-minute schedule changes
  10. Regular and backup child care arrangements
  11. Whether the other parent must be considered first when a babysitter is needed (also known as the ‘right to first refusal’)
  12. How relocation requests will be handled, including how much notice must be given and how relocation disputes will be addressed
  13. Plans and/or schedules for maintaining ongoing relationships with extended family members
  14. Agreed  guidelines for introducing the children to either parent’s ‘friends’ or dating partners

 

A Family Dispute Resolutions Practitioner can help you formulate a parenting plan that focuses on the best interest of your children and create a workable blueprint for working together as separated parents. Bayside Mediation helps parents make workable and robust Parenting Plans.

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.

Myth #1: “We were married so we should split everything 50/50”?

This is probably the most common family law myth we hear. There is no rule or requirement that any
separation, any married or de-facto, has to result in a 50/50 division. In determining any split, the
Family Court will consider:

  • the financial contributions each party made to the acquisition of property;
  • the contributions each party made as parent and homemaker;
  • any non-financial contributions made by either party; and
  • the future needs of both parties.

Myth #2: “They cheated on me so I should be entitled to more”

Australia is a “no-fault divorce” jurisdiction. This means that moral issues such as infidelity will not
impact the overall property settlement or determine who children of the relationship are to live with.

Myth #3: “They need me to agree to get a divorce”.

Both parties do not need to consent to get a divorce. You can object to a divorce application by filing
a Response to Divorce Application however the objection will only be upheld if:

  • you and your spouse have not been separated for a period of 12 months;
  • there was not a valid marriage; or
  • the court does not have the jurisdiction to hear the application.

If the procedural and legislative requirements have been met, it is virtually impossible to object to a
divorce application. Whilst you and your spouse can file a joint application for divorce one party can
file the application solely as well.

Myth #4: “We haven’t divorced so I don’t have to sort out finances yet”.

Property settlement orders can be made at any time after separation. It is important to remember
that there is a 12 month time limit for you to commence proceedings in the Family Court which
starts from the day your divorce order comes into effect.

We usually recommend that your property settlement matters are finalised either before or at the
same time as your divorce to ensure that you remain within this time limit.

Myth #5: “Kids should live equally with each parent”.

The paramount consideration in all parenting matters is to determine what is in the best interests of
the child. Whilst the court may consider whether an equal shared arrangement is in the best
interests of the child or children, this may not always necessarily be the case.

These myths often arise from relying on the internet, friends or family members for information
relating to your family law matters. It is always best to be informed and get your facts from an
experienced family lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist
advice should be sought about your specific circumstances. Contact Bayside Mediation for more information and a 30 minute free phone consultation!

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

It is a question that is often asked and there is no definitive answer, as this article by Mondaq points out.

Children’s rights and well-being are the paramount concern of the Family Court, if your matter goes that far. However, the vast majority of access arrangements are organised outside the jurisdiction of the court. It falls to the experience and expertise of Family Dispute Resolutions Practitioners (Family Law Mediators) to help parents negotiate their parenting plans and to ensure that children have a voice in that process.

Within Family Law Mediation the process of giving children a voice is called Child Inclusive Mediation and it is considered the bench mark for all parenting agreements that involve children over 4 years old.

It is worth noting that only registered Family Dispute Resolutions Practitioner (Family Law Mediators) are required by the Family Law Act to advocate for the best interest of children in a dispute that has not gone before the Court.  It is only once a matter has gone to Court that children will be provided an Independent Children’s Lawyer.

Giving children a voice in their parent’s separation is by far the best opportunity for parents to hear what children are experiencing during this difficult time. Parents can then make better decision around access and contact arrangements. However, not every Family Law Mediation service offers Child Inclusive Mediation. Parent need to ask the question of the service they are engaging with and if they don’t offer Child Inclusive Mediation they should look elsewhere for the sake of their children.

Bayside Mediation is one of only a handful of private mediation services that offers Child Inclusive Mediation. As a Child Focused practice, we work closely with parents to help them make the best decisions possible for their children during this difficult time. Every family’s circumstances are uniquely their own and we work with you and your children for better outcomes.

Traditional #mediation involves just the clients and their #mediator and for the most part it works extremely well. However, from time to time, especially with Financial Mediations they can get bogged down on legal issues that your #mediator cannot resolve. This leads to a adjournment in the #mediation whilst clients go off to get legal advice; this causes delays and frustration for all.

Solicitor Assisted Mediation (#S.A.M.) offers an alternative to traditional mediation and litigation.

With #Solicitor Assisted Mediation clients attend #mediation with their respective solicitors, they are still mediating, but if there are legal questions to be addressed, their solicitors are right there ready to support them. The clients negotiate their own settlement and decide how they want to divide their property and other assets. At any time they can call for an adjournment and go to a breakout room to discuss their concerns privately with their solicitor. Once an agreement is reach your solicitor can write up a Heads Of Agreement or I have had some solicitors draft a Legally Binding Financial Agreement on the day, which clients can sign if they both agree.

Reasons To Use #S.A.M.

  1. A more open and transparent process leading to less animosity and distrust between clients.
  2. Extremely cost effective, #S.A.M. costs many thousands of dollars less than litigation.
  3. We can start the process with mediation and work through much of the emotion and difficulties before coming together for #S.A.M.
  4. #Mediation can prove a cost-effective way of collecting all the relevant data needed to finales property settlements.
  5. A much quicker process than taking a matter through the courts, a #financial mediation could be finalised within weeks not months or years as with litigation.
  6. For uncomplicated matters a Financial Agreement can be completed and signed on the day
  7. If clients don’t get a resolution through #S.A.M. they can still take the matter to court and clients can continue their relationships with their existing solicitors. Unlike Collaborative Law, where if it fails clients must find new solicitors.

When you decide to move on from your relationship, you will find there are several options available to help you finalise your relationship, your child access arrangements, and your financial settlement.

Many people assume they must use a Solicitor to finalise their issues but this is not the case, Family Law Mediation was developed over 30 years ago to give couples a clear choice when it comes to finalising their relationships.

If you decide that mediation is the best option for you and your family, you will find some Solicitors that offer their services as Mediators as well as Solicitors. So, what does this mean for you?

Firstly, you need to be aware that a Solicitor cannot act as both a Solicitor and Mediator in a separation. The Family Law Act clearly states that they cannot act as both, which means if your Solicitor mediates with you and your former partner and it is not successful, you will then have to find a new Solicitor to take the matter further.

Often, having a Solicitor acting as your mediator confuses the impartiality of the process. Your former partner is less likely to trust your Solicitor will be impartial when dealing with your family’s issues.

It is important to also know, that the only Mediators who are legally registered to work with Family Law Issues are those with the qualification ‘Family Dispute Resolutions Practitioner’, make sure your Solicitor not only has this qualification but that their registration is up to date. If you want them to mediate for you.

And finally there is the cost; a Solicitor is very likely to charge out their services, whether mediating or giving legal advice, at their usual hourly rate. And mediation is billed to both clients, for example, if your Solicitor charges $500.00 per hour, both you and your former partner may be charged $500.00 per hour each, for the time you are mediating.

Mediation was designed to be a cost effective, timely and a non-adversarial alternative to using Solicitors when couples separate. By using a Solicitor as your Mediator, it could be very costly, it could result in a drawn-out process and you may find it escalates any ill-will that exists between you and your former partner.  Choosing a Mediator whose previous qualification provides skills for dealing with people in emotional and difficult situations seems to be a sensible option.

Collaboration – working with others to achieve an outcome.

In Mediation that can mean you, your former partner and a #mediator working together to try to resolve your differences. With #mediation you can elect to bring a support person with you. You can also elect to have #Solicitor Assisted Mediation (SAM), where both parties have solicitors present so any legal questions can be resolved during the mediation

In Collaborative Law in can mean you, your former partner, your solicitors, a mental health expert (psychologist), and a financial expert all coming together to try and resolve your differences.