Consent orders are a legal way to formalise agreements on parenting matters (known by many as child custody) and property division following separation. They ensure your arrangements are binding and enforceable under Australian family law.
What are consent orders?
If you and your ex-partner have reached an agreement on the parenting arrangements and/or how the property will be divided, you can apply to the Federal Circuit and Family Court of Australia (Division 2) (the Court) to have your agreement made into orders.These are called consent orders.
You are able to apply for consent orders for both parenting and property in the same application, as well as separately. You can also apply for consent orders to discharge or vary existing family law orders.
The Court still has to be satisfied as to various matters for orders to be made, even if they are sought by consent between the parties.
See our article on Parent Plans vs Consent Orders.
Do I need a lawyer to apply?
No, you don’t need a lawyer, you can do it yourself. To apply for consent orders, you file a detailed Application for Consent Orders, Minutes of Consent setting out the agreement you have reached, and other accompanying documents depending on the orders that you seek.
There are many benefits of course associated with receiving legal advice about the agreement or how to draft the documents, but it’s not a requirement.
When can I apply?
The short answer – for most, any time after you have separated on a final basis if there is agreement. You don’t need to be divorced, as long as the separation is final.
The long answer – There are certain timeframes for applying to the Court for property orders, such as within 12 months from the date ofa divorce order takes effect for married couples, or 2 years from the date of separation for de facto relationships. If these time frames have passed, you can still apply for consent orders, if, for example, both parties agree to the application proceeding out of time.
If you think you may be approaching a time limit or have already passed it, we recommend that you get legal advice from a suitably qualified family lawyer, such as Daykin Family Law, as a matter of urgency.
What do I file?
Regardless of whether you are applying for parenting or property orders, you need to complete an Application for Consent Orders and Minutes of Consent setting out the Orders you seek.
The Application for Consent Orders can be downloaded from the Court’s website.
An Application for Consent Orders is a very detailed document. It includes information to assist the Court in determining if the Minutes of Consent can be made into Orders.
It includes general information, including, for example:
- each person’s name, date of birth, occupation etc;
- details about the relationship, when you started living together, married, separated and divorced;
- If there are any ongoing cases or any Orders, parenting plans or Undertaking;
It also includes information specific to the type of application. If you are applying for parenting orders, you may need to provide information about, for example:
- The child/ren;
- What the arrangements will look like, including the housing, financial support, health and education for the child/ren and, anything else relevant;
- If you consider that the child/ren has or is at risk of abuse, neglect or family violence; and
- Why the Orders you seek are in the child/ren’s best interest.
For property, the information can include, for example:
- Each parties’ income;
- The property owned by either person, and its value;
- Any loans or other liabilities that either person may have;
- Any superannuation that either person may have;
- Considerations relating to the financial, non-financial and parenting contributions of the parties, specific issues pertaining to family violence, or anything else relevant to determining the division of property;
- Considerations relating to the current and future circumstances of the parties;
- How you propose the property pool is divided; and
- Who retains what.
Minutes of Consent
The Minutes of Consent is where you set out the exact orders you are requesting. For parenting, this might include:
- Parental responsibility
- Living arrangements
- Travel and other associated decisions
For property, it might include:
- Transfer of assets (e.g., family home, superannuation split)
- Refinancing mortgages, etc.
It’s crucial that the orders are detailed and clear so the Court can understand your intentions and make decisions accordingly.
Additional Documents
In addition to the above documents, depending on whether you are filing for parenting, property, or both, and the type of orders that you are asking for, you may be required to file additional material.
How do I apply?
The easiest way to apply for consent orders is to file your Application and accompanying documents online, through the Commonwealth Courts Portal.
The Court website has lots of information to assist people with applying, including a step-by-step guide. If you are unable to apply online, you can also apply in person at one of the Court Registries.
There is a filing fee when you apply.
What happens once my Application is filed?
Once your Application is filed, it will be assigned a date to be reviewed by a Judicial Officer. If the court is satisfied as to relevant matters (such as that parenting orders are in a child’s best interests or the property orders are just and equitable), orders may be made on the terms of the Minutes of Consent sought and Court Orders may be issued by the Court.
An application may be requisitioned in some circumstances so that you can, for example, file amended documents or provide further information.
I have Court Orders – what next?
Court Orders are binding and enforceable, so it is important that you comply with all of the Orders and ensure you complete anything by the required date.
If you are unable to comply with an Order or consider that you may not be able to comply in time, you should seek independent legal advice as soon as possible.
Contact Daykin Family Law for help with Consent Orders
Consent orders are one way to formalise an agreement about the care arrangements for your child/ren, or how your property will be divided. There are other ways, and you should seek fulsome legal advice to ensure that your interests are fully protected as the above is just general information.
Contact the team at Daykin Family Law today for expert legal advice and to discuss whether consent orders are right for your situation.
Identifying the subtle and insidious signs of coercive control is challenging but can be vital for the well-being of individuals and families. It is important to be able to spot the signs of coercive control as early as possible.
This form of abuse, often hidden beneath the surface, can have profound and lasting effects on those subjected to it. As leading family law experts, we want to shed light on this all-too-pervasive issue.
In this article, we delve into what can constitute coercive control, the signs to look out for, and the legal avenues available in Australia to safeguard yourself and your loved ones. By raising awareness and understanding, we hope to empower individuals, equip them with knowledge, and ultimately, contribute to breaking the cycle of this silent form of domestic violence.
What is Coercive Control?
Coercive control is an ongoing and deliberate pattern of behaviour intended to dominate, control, or isolate another person through repeated harmful actions, which can be physical or non-physical. These actions, while sometimes appearing minor individually, become significantly harmful through repetition and continuity. Coercive control can occur in various relationships, including intimate partnerships, family dynamics, or caregiving situations. It’s particularly recognised as domestic abuse and is a criminal offence in many Australian states, including Queensland. The controlling behaviours are often tailored specifically to the individual victim, shifting as circumstances change. Help is available for anyone experiencing or concerned about coercive control.
13 Signs and Examples of Coercive Control
Here are a few of the key signs of coercive control. It’s important to note that not all of the following signs need to be present in order for abuse to qualify as coercive control; any single one of these signs on its own qualifies as coercive control. And there may be other forms that are not included below. As such, this list is not exhaustive. If you notice any of the following signs in your relationship or the relationship of a family member or friend, seek help today.
Isolation from friends and family
The abuser may seek to cut off the victim from their social networks, often under the guise of love or concern. This isolation can lead to the victim feeling alone and dependent on their abuser for social interaction and support.
Control over daily life
This could involve strict rules about mundane aspects of daily life, such as what to wear, what to eat, or where to go. This kind of micromanagement can significantly restrict the victim’s personal freedom and decision-making power.
Surveillance and privacy invasion
The abuser may monitor the victim’s communications, snoop on their personal devices or track their physical movements, undermining their personal privacy and autonomy.
Deprivation of basic needs
This could involve withholding access to necessary resources like money, food, transportation, or medical care, increasing the victim’s reliance on the abuser, significantly impacting their independence and well-being.
Threats and intimidation
The abuser may use threats, whether direct or indirect, to induce fear and compliance. This could involve threats of physical harm, threats to harm loved ones, or threats of self-harm. These threats may range from subtle hints to overt statements of harm.
Gaslighting
This psychological manipulation tactic is used to make victims question their own reality or sanity. The abuser may deny events, twist the truth, or belittle the victim’s feelings and experiences, leading them to doubt their own perceptions and judgement.
Dehumanisation and degradation
The victim may be subjected to constant criticism, humiliation, or insults, eroding their self-esteem and sense of self-worth.
Restricting freedom of movement
This could involve the abuser refusing to let the victim leave the house, controlling where they can go, or even physically restraining them.
Control over finances
The abuser may control the victim’s access to financial resources, monitor their spending, or make all financial decisions, rendering the victim financially dependent.
Manipulation of information
The abuser might lie, withhold important information, or distort the truth to confuse and control the victim.
Enforcing trivial demands
The abuser may insist on the victim adhering to seemingly insignificant demands or routines, instilling a constant state of compliance and fear of consequences.
Punishments or consequences for ‘disobedience’
If the victim doesn’t comply with the abuser’s rules or demands, they may face punishments. These could range from emotional manipulation to physical harm, or threats towards someone or something close to the victim.
Control over personal appearance
The abuser might dictate how the victim should look, including their clothing, hairstyle, makeup, or weight.
Each of these signs individually can be harmful, but when combined in a pattern of coercive control, they can have a deeply damaging and lasting impact on the victim’s emotional, psychological, and physical wellbeing. It’s crucial to recognise these signs and take action, whether you’re a victim or a concerned friend or family member.
How to Deal with Coercive Control
If you find yourself subjected to a situation of coercive control, it’s crucial to remember that you’re not alone and there are resources available to support you. Here are a few ways that you can deal with it:
- Recognise the signs: The first step is to understand what coercive control is and acknowledge if you’re experiencing it. This will empower you to seek the help you need.
- Reach out: Try and talk with trusted friends and family members about your situation. If you have no one close to you that you can talk to then reach out to one or more of the following resources. You could talk to a trusted medical practitioner.
- Utilise available resources: There are numerous dedicated hotlines available to provide immediate assistance. Here are a few key contacts:
- Relationships Australia (Queensland branch): 1300 364 277
- 1800RESPECT: 1800 737 732
- DVConnect Womensline: 1800 811 811
- DVConnect Mensline: 1800 600 636
- Sexual Assault Helpline: 1800 010 120
- Kids Help Line: 1800 55 1800
- Lifeline: 13 11 14
- Prioritise safety: If you or your children are in immediate danger, call 000 immediately. Safety should always be the top priority.
- Seek legal advice: The intricacies of legal processes can be challenging to navigate. Professional legal advice can help you understand your rights and the options available to you. At Daykin Family Law, our expert team is ready to guide you through these challenging times. Contact us today to find out how we can help.
Remember, it’s important to take steps that are safe for your situation. Each circumstance is unique, and what works for one person might not work for another. You don’t have to face this alone, and help is available.
Separation can cause many challenges for parents and children alike, including stress and uncertainty around the children’s care arrangements. It is important to understand your options.
There are two main ways to formalise parenting arrangements, firstly, through a parenting plan and, secondly, through Consent Orders. Both come with their own advantages and disadvantages. So, which option is best for you and your family?
What is a parenting plan?
A parenting plan sets out the parenting arrangements for a child or multiple children.
Parenting plans are typically entered into jointly by the parents when they agree on the care arrangements for a child.
The Family Law Act 1975 (the Act) governs parenting plans and the requirements for a document to be recognised as a parenting plan.
Under the Act, a parenting plan is an agreement that:
- Is in writing;
- Is or was made between the parents of a child/ren;
- Is signed by the parents of the child/ren;
- Is dated; and
- Deals with one or more specific things, including but not limited to:
- The parent that the child will live with;
- The time that the child will spend with the other parent;
- The allocation of parental responsibility for a child;
- The communication a child will have with the parents; and
- Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
A parenting plan must be made free from any threat, duress or coercion.
Advantages and disadvantages of a parenting plan
Some of the benefits of a parenting plan include:
- Parenting plans can be varied periodically for example, to adapt to the changing needs of children. By contrast, it can be more difficult to periodically vary Consent Orders;
- They can be completed without the need for legal assistance;
- If you seek legal assistance, they may be more cost effective than Consent Orders;
- They can be relatively simple to draft, especially when compared to an Application Consent Orders and minutes of consent;
- A parenting plan is not a formal Court Order, so it may be more flexible and easier to change, to reflect the child’s or parents’ changing needs;
- They may be written in less formal terms than a Consent Order; and
- They may be less detailed than Consent Orders, as they don’t have to address all of the care arrangements for the child.
Some of the disadvantages of a parenting plan include:
- As they may be less detailed than Consent Orders, this may leave room for disagreement about anything not included in the parenting plan;
- A parenting plan may be varied or revoked by agreement in writing between the parents, so arguably, it may be easier for a parent to stop complying with the agreement; and
- A parenting plan is not enforceable by the Court, meaning if a parent fails to follow the agreement, it may be difficult to enforce. However, if an issue arises and you commence proceedings, the Court may consider the terms of the most recent parenting plan when making a parenting Order and parenting plans are often an important piece of evidence in future parenting proceedings.
What are Consent Orders?
Consent Orders for parenting are Court Orders that formalise the agreement reached between parties about the care arrangements for a child or multiple children. Consent Orders for parenting are also governed under the Act.
To enter into Consent Orders, you and the other party (usually the other parent) complete and file specific documents with the Federal Circuit and Family Court of Australia (the Court).
One document you file is an Application for Consent Orders, providing the Court with information about, including, but not limited to, the child, parents, and the current and proposed care arrangements.
This provides the Court with information to assist in determining if the Orders are in the child’s best interest, which is the paramount consideration of the Court.
You and the other party also complete and file a Minutes of Consent, setting out the agreement that you have reached, along with other accompanying documents. The Minutes of Consent may cover similar things as a parenting plan and may be written in a similar, but more formal manner.
They are the terms of the orders that the parties are seeking to be made by the Court. Once Consent Orders are made by the Court, they are binding and enforceable on the parties.
Advantages and disadvantages of Consent Orders
Some advantages of Consent Orders include:
- They may be completed by a party without the need for legal assistance. The Court has a step-by-step guide on how to apply for Consent Orders on their website, which may assist self-representing parties to complete the process;
- Consent Orders are made by the Court and legally binding on the parties. This means that both parties must follow the Orders, and if either party fails to do so, there may be serious consequences;
- As the Consent Orders are legally binding on the parties, if one party is not complying with the Orders, the other party may have more access to remedies through the Court; and
- They may only be changed in limited circumstances, including for example, when there has been a significant change in circumstances or by consent between the parties. This may also be a negative, as if you wish to change the Orders and are unable to reach agreement, it may be a complex and costly process to apply for a change through the Courts.
Some disadvantages of Consent Orders include:
- They may be completed by a party without the need for legal assistance, however it is arguably more complex to apply for Consent Orders than it is to enter into a parenting plan;
- If you have a lawyer assisting you, it may be more costly to draft, as multiple documents are filed (for example, the Application for Consent Orders and Minutes of Consent), unlike a parenting plan;
- If the Court does not consider the Minutes of Consent to be in the child’s best interest, they may not make Consent Orders;
- It may be more difficult to vary Consent Orders then a parenting plan, as you may wish to formalise the variation with the Court; and
- To file an Application for Consent Orders and the accompanying documents, the Court has a filing fee.
Parenting plan or Consent Orders – which do I choose?
There are many advantages and disadvantages to parenting plans and Consent Orders.
There may be more flexibility to vary a parenting plan if the needs of the child or parents’ change and it may cost less to enter into a parenting plan, when compared to Consent Orders.
Consent Orders are legally binding and enforceable on the parties, arguably providing greater certainty on the arrangements for the child.
They also provide for more access to remedies if a party does not comply with the Orders.
Daykin Family Law is here to help
It can be difficult deciding if a parenting plan or Consent Orders is best for you and your children, and the answer may likely change depending on your circumstances. If you need assistance deciding, or with negotiating and drafting a parenting plan or Consent Orders, experienced family lawyers like Daykin Family Law can help. Contact Daykin Family Law today for clear, practical, and supportive legal advice
Navigating the end of a relationship can be stressful and complicated, especially when dividing assets and liabilities. Many people finalise a property settlement well before finalising a divorce. At Daykin Family Law, we regularly help clients manage their financial and property settlements promptly after separation. Here’s a straightforward guide on handling property settlements before divorce in Australia.
Can You Do a Property Settlement Before Divorce?
As touched on above, yes, you can. Property settlement and divorce are separate legal matters under Australian law. You can finalise your property arrangements right after separation—even the following day in theory, although most people would likely need time to process the separation, work through any preliminary settlement steps and reach agreement. Early settlement simplifies your divorce proceedings, saving time, money, and reducing stress.
Remember, while you can start property settlement immediately, Australian law requires you to be separated for 12 months before formally applying for divorce.
Selling Property Before a Divorce Settlement in Australia
Selling property before a divorce settlement is legal but requires careful planning.
When Selling Property Early Makes Sense:
- Both parties agree clearly on the sale and the distribution of proceeds.
- The property needs immediate sale to avoid financial hardship or a decrease in value.
- Ongoing joint financial obligations, such as mortgage repayments, need to be reduced or ended.
- Maintenance costs or financial commitments make continued ownership impractical.
Risks of Selling Property Early:
- Potential disputes over dividing proceeds.
- Emotional tensions causing communication breakdowns during negotiations.
- Unexpected tax and financial implications.
- Possible delays or challenges if one party opposes the sale.
Getting legal advice early ensures fair and enforceable agreements are in place before proceeding.
How to Calculate Property Settlement in Divorce
Australian family law as at the time of publishing this blog (noting there are changes coming to property settlement law on 10 June 2025 which this article does not cover) does not use a fixed formula to calculate property settlements. Instead, the courts consider several factors to determine a fair division:
Step 1: Identify and Value Property
Identify all assets, liabilities, super, financial resources, whether owned jointly or individually. Typically, these include:
- Real estate (family home and other properties)
- Bank accounts and cash
- Investments and shares
- Superannuation
- Vehicles and recreational assets
- Businesses and trusts
- Jewellery, collectibles, and art
- Insurance policies
- Inheritances
Liabilities typically include mortgages, loans, and credit card debts. Independent valuations for major assets ensure accuracy.
Step 2: Assess Contributions
The court currently considers both direct and indirect contributions (although keep in mind this is changing on 10 June 2025 with amendments to the Family Law Act and stay tuned to our website for more on this):
- Financial contributions, including earnings, savings, and property brought into the relationship.
- Non-financial contributions like home improvements, managing investments, or running a business.
- Homemaking and parenting responsibilities.
Step 3: Consider Future Needs
The court evaluates each person’s future needs, considering:
- Age and health
- Income potential and employment prospects
- Childcare and dependent responsibilities
- Length of the relationship
- Other relevant factors
Step 4: Justice and equity
The court decides if the proposed settlement is just and equitable. Adjustments can be made on this step. An example may be in circumstances where one party is retaining a high portion of the combined superannuation of the parties, and the other party may for example be retaining the former matrimonial home and the mortgage. In that case, the court could make an order for the first party to split some super to the other party, and the other party to make a payment to the first party.
Formalising Your Property Settlement
Formalising your property settlement legally protects both parties. Two common ways to record a settlement in a binding and enforceable way is to enter into Consent Orders or a Binding Financial Agreement (BFA).
Consent Orders
- Approved/made by the Federal Circuit and Family Court of Australia when filing an Application for Consent Orders and Minutes of Consent.
- Legally binding and enforceable.
- Clearly outlines agreed terms.
Binding Financial Agreement
- Created without court “approval” but requires independent legal advice for both parties.
- Can address property division, superannuation splitting, and spousal maintenance.
- Legally binding and enforceable.
Important Time Limits
There are specific time limits for property settlements:
- Married Couples: You have 12 months from the date that a divorce order takes effect to file in court for property settlement and/or spousal maintenance orders.
- De Facto Couples: You have 2 years from the date of separation to file in court for property settlement and/or maintenance orders
Missing these deadlines requires special court permission (known as leave of the court), which may not always be granted and can be an expensive process.
Benefits of Early Property Settlement
Initiating your property settlement early has many advantages:
Provides Financial Clarity and Certainty
Settling your property matters early gives you clear knowledge of your financial situation. You know exactly what you own and owe, enabling better planning and decision-making about your future finances.
Minimises Conflict and Expensive Legal Disputes
The earlier you settle property matters, the less likely disputes may escalate. Addressing financial issues early reduces misunderstandings, disagreements, and costly court battles, saving both parties time and money.
Prevents Complications from New Assets or Debts
Finalising your settlement quickly prevents additional assets or debts from complicating your case. If either party accumulates new property or liabilities after separation, these can complicate negotiations and increase tensions.
Facilitates Emotional and Financial Recovery
Early settlement allows you to move on emotionally and financially. By promptly resolving financial ties, you can focus your energy on rebuilding your life and planning your future, leading to quicker emotional recovery.
Contact Daykin Law for Help With Your Property Settlement
Property settlements can be complex and emotionally charged. Getting expert legal guidance early is essential. Daykin Family Law specialises in managing property settlements effectively and ensuring outcomes tailored to your unique circumstances.
If you’re considering a property settlement before divorce, contact Daykin Family Law today for clear, practical, and supportive legal advice.
FAQs
How Long Does Property Settlement Take?
The duration of a property settlement varies significantly based on the complexity of your property settlement and the level of agreement between parties. Settlements can take anywhere from a few weeks to more than a year, particularly if court involvement is necessary.
Who Pays Court Costs in Property Settlement?
Typically, each party covers their own legal fees and court costs. However, in some cases, the court might order one party to contribute to the other’s legal expenses, especially if one party has acted unreasonably during proceedings as an example.
Do I Need a Lawyer for Property Settlement?
While it’s possible to handle property settlements without legal representation, having a lawyer is highly recommended. Property settlements involve complex legal processes, and professional advice ensures your interests are protected and agreements are legally enforceable. If you’re in Brisbane and need help with property settlement, contact us today.
Binding Financial Agreements (BFAs), commonly referred to as prenuptial or postnuptial agreements, serve as an important tool for Australian couples who wish to outline the division of their assets in the event of separation or divorce. While BFAs provide clarity and security for many couples, it’s important to understand that these agreements aren’t ironclad and can indeed be overturned by the courts in certain situations. This blog delves into the grounds and processes involved in overturning a BFA, using up-to-date Australian legal references and relevant case studies as at the time of publishing.
What is a Binding Financial Agreement?
A Binding Financial Agreement is a legally enforceable agreement under Australian law that sets out how a couple’s assets, liabilities, and financial resources will be divided if their relationship ends, and can deal with other things as well in certain cases such as maintenance and spousal maintenance. While commonly associated with marriage, BFAs can be created by de facto couples, married couples, people entering a de facto relationship, and even couples who have already separated or divorced.
There are several requirements for BFAs to avoid potential issues, and for a BFA to be binding and enforceable under Australian law, including but not limited to:
- The agreement must be entered voluntarily.
- Both parties must provide full financial disclosure.
- Independent legal advice must be received by both parties.
- Lawyers must certify that such advice was provided.
Grounds for Overturning a BFA
There are specific grounds outlined under Sections 90K and 90UM of the Family Law Act 1975 which outlined circumstances where a court has the power to set aside a BFA (which is essentially to overturn the BFA). Some of these include:
1. Fraud or Misrepresentation
Fraud can involve deliberately withholding significant financial information or providing false information when drafting the agreement.
2. Failure to Comply with Legal Requirements
A BFA can be overturned if legal formalities are not followed. These include the absence of independent legal advice or inadequate documentation proving such advice in some circumstances.
3. Unconscionable Conduct or Duress
Courts may overturn a BFA if one party was coerced into signing it, either through undue influence, emotional pressure, or outright threats. The landmark case Thorne v Kennedy [2017] exemplifies this, where the High Court invalidated a BFA after determining the wife was subjected to significant pressure and undue influence shortly before the wedding (source).
4. Material Change in Circumstances
Material change in circumstances that has occurred relating to the care, welfare and development of a child and, as a result, there is certain hardship suffered.
5. Impracticability
BFAs might be overturned if circumstances have arisen since the agreement was made, it is impracticable for the agreement or part of it to be carried out.
How to Challenge a Binding Financial Agreement
To challenge a BFA, there is generally a detailed legal process to follow, such as:
- Legal consultation: Consult a specialist family lawyer who can assess the merit of your challenge and your prospects of success in making such a challenge. The advice of a barrister at this step can be invaluable.
- Mediation or conciliation: Attempt to resolve disputes out-of-court.
- Carry out pre-action procedures: You need to consider how the relevant pre-action procedures apply to your case and which steps you must take before applying to the court.
- Filing an application: File an application with the Federal Circuit and Family Court of Australia.
- Serving the application: Formally serve the documents on the other party pursuant to the relevant Rules.
- Gathering evidence: Collect documentation such as financial records, communication evidence, or proof to support your case.
- Response from the other party: The other party may defend the BFA’s validity and do so in their Response to Initiating Application. The other party must detail the orders they seek in response to the Initiating Application.
- Court process: There are specific steps in the court process which involve first mentions in the court, and can involve interim hearings as well.
- Explores avenues to settle: Any options to try and settle the matter without further litigation can be explored and considered, such as attending another mediation.
- Court decision: A judge will make a decision at a final hearing if the matter is not settled prior.
- Appeal process: Limited scope to appeal decisions under the relevant legislation. Specialist legal advice should be sought as soon as possible after final hearing given there are strict time limits to file an Appeal.
Alternative: Negotiating a New Agreement
Instead of going to court, it may sometimes be more beneficial for both parties to renegotiate the terms of the BFA amicably. This process can offer a quicker, less stressful, and more cost-effective resolution compared to formal court proceedings. It typically involves the following detailed steps:
- Mutual agreement to renegotiate: Both parties must willingly agree to revisit and adjust the original terms, acknowledging changes in circumstances or evolving financial positions.
- Independent legal advice: Each party should engage their own independent legal advisors to ensure they understand the implications of the new agreement fully and protect their rights and interests.
- Comprehensive financial disclosure: Both parties must openly provide updated and accurate information regarding their current financial positions, including assets, liabilities, income, and expenses.
- Negotiation and mediation: Parties can negotiate directly, through their lawyers, or employ a mediator to facilitate discussions. Mediation often helps manage emotions and ensures negotiations stay productive and balanced.
- Drafting and reviewing the new agreement: Once terms are agreed upon, a new BFA is drafted which will generally terminate the original BFA as part of it. Lawyers for both parties will review this document to ensure compliance with legal standards and confirm that it clearly reflects the intentions of both parties.
- Legal certification: Independent legal advisors for both parties must issue certificates confirming comprehensive advice has been given regarding the new agreement’s advantages and disadvantages, among other things.
- Finalisation and implementation: The newly negotiated BFA must be signed and formally executed.
Negotiating a new BFA is often preferable because it preserves relationships, maintains control over outcomes, and minimises legal costs and emotional strain associated with court actions.
How Likely is Success in Overturning a BFA?
Success in challenging a BFA varies significantly, influenced by the specific circumstances and quality of evidence. Each case is unique, and courts assess each application carefully, considering a range of factors under the relevant legislation. However, the process of overturning a BFA can be expensive and time consuming and specialist advice should be sought. Costs and consequences can flow against an unsuccessful party in court.
Daykin Family Law is Here to Help
While Binding Financial Agreements are powerful tools offering financial security during relationship breakdowns, they aren’t ironclad and can be subject to later challenge. Understanding when and how these agreements can be contested is essential. If you find yourself questioning the fairness or legality of your BFA, seek expert legal advice promptly. Experienced family lawyers like Daykin Family Law can guide you through the complexities of your situation, ensuring your financial rights remain protected.
A main concern for people when they separate is what will happen to any property they have accrued during the relationship. It’s no wonder then that questions around the division of property are some of the most common we are asked at Daykin Family Law.
We frequently advise on concerns related to the family home and ownership of property in the event of separation or divorce, so we’ve pulled together some of key facts you need to know about property before, during and after divorce or separation.
How do we go about dividing property and assets during separation and divorce?
There are several options available when it comes to the division of assets, but for most separating couples, what happens to the family home can be negotiated and agreed as part of property settlement. There is no set way for how this agreement can be reached, and often depends on reaching an outcome that suits both parties and the children, if any.
Simply put, a Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto involves the division of the things you and your partner own or have an interest in. This can include real property, businesses, shares and chattels to name a few.
If you require more information on the process and time constraints in detail, we’ve covered 8 Things You Need to Know About Property Settlement here.
Who pays the mortgage after separation?
At a time when budgets are often stretched, this question is a common one. Firstly, if the mortgage is in both names (‘joint names’) then both parties are legally responsible for paying the mortgage. If payments are not made, by either or both parties, then the bank can take steps to legally repossess the property, despite any separation or divorce proceedings that are in place.
If, in the event that one party, whether living in the house or not, refuses to make mortgage repayments, there are a number of options to consider:
- Contact the lending institution and inform them of the circumstances. It may be better that they are aware of the reason for defaulted payments and may be able to reach a compromise with you on repayments pending final division of your property through the Family Court or Federal Circuit Court.
- If you and your partner can agree to sell the property, this will ensure the mortgage is paid. Any proceeds following the sale can be held in a trust account until you reach an agreement with your former partner.
- In some circumstances, you can obtain a Court Order for spousal maintenance to force your partner to contribute to ongoing mortgage payments.
Whether you keep making mortgage payments depends on a number of circumstances. For example, continuing to make mortgage payments can enhance your property entitlements if those payments are considered to be post-separation contributions in certain scenarios.
In other circumstances, it can be advisable to cease making contributions where that person is no longer living at the property and has to rent new premises and lacks the capacity to make such payments. Ultimately, the decision made surrounding mortgage payments can impact on property settlement . It is strongly advised to seek advice from a family law specialist to decide the best course of action for your individual circumstances.
We’ve separated. Who stays and who goes?
In situations where one spouse is unable to live under the same roof as the other, a ‘holding pattern’ can be agreed that allows one spouse to take rented accommodation and for resources to be made available for this purpose until the property settlement is finalised. If no agreement can be reached and neither spouse wants to leave, an application can be made to the Court for an order granting sole occupation. In order to do this, it may need to be demonstrated that it isn’t viable for both spouses to live together, and that the funds are available to fund a separate accommodation for the other party.
We were in a de facto relationship. Can we still apply to the Court for Property Orders?
Yes, you may be able to. The Family Law Act 1975 contains certain mirror provisions that apply to both married and de facto couples. An application for property settlement arising from the breakdown of a de facto relationship can be made in circumstances where:
- the separated couple have been living together on a genuine domestic basis for two years or more; or
- there is a child of the relationship; or
- a party has made substantial contributions of a certain nature and serious injustice would result.
Can we begin the property settlement process before we divorce?
Yes, you can commence the process at any time. A settlement can be a lengthy process, so it can be advisable to begin the property settlement process as soon as it is feasible. Sometimes, the longer parties wait before dividing the property, the greater the chance that problems may arise, for example one of the parties could be reducing the property pool by wasting, selling or disposing of property.
It should also be noted that the Court will usually identify and value property that exists at the date of the final hearing, meaning property acquired by the parties after the date of separation can be taken into account.
However, it is important to only begin the process when you can think rationally. Where there is any hostility, it is advised to seek the assistance of a lawyer. Separating de facto parties must bring proceedings for Property Settlement and/or maintenance within two years of the date separation and married couples must do so within twelve months of a divorce order taking effect.
We have children. Will this affect the property settlement process?
Putting aside the legal aspects, if you have children, this can bring an emotive aspect to considerations around property, especially in the short term. In what is normally a turbulent time, parents should consider whether it is viable, appropriate and financially possible for one parent to remain in the family home with the children in the interim period of separation or divorce. Some separating couples in this situation prefer the primary carer to stay in the family home to ensure continuity for the children.
While both parties may strive to ensure continued access to the family home for the children, sometimes this may not be feasible. Many primary caregivers are not the primary income earners and may be concerned about how they might be able to make financial ends meet while maintaining continuity for the children in the family home, or how they will solely take on a mortgage.
Alternatives such as spousal maintenance may be an option in this scenario, to ensure one party pays for particular outgoings for a period, even if they are not living in the family home. Where there are financial strains from not immediately dividing the property assets, we strongly advise getting legal advice to try and reach the most balanced outcome for both parties.
What do I do now?
Separation, divorce and property settlement can be one of the most emotional and financially important decisions of your life so it’s crucial to work with a lawyer with the expertise and experience you need to be able to make informed decisions about your entitlements and which course of action is best for you personally and your children.
Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We can discuss your entitlements and suggest the best course of action to settle the matter quickly and efficiently.
If you believe you can come to an amicable agreement with your partner, it is still important to have that agreement formalised in a binding and enforceable way. Property Settlement can be a complex area of law; therefore, sound and pragmatic advice is needed to ensure that all issues are fully assessed from the outset and steps are put into place to protect you throughout your whole matter.
Each case is different and depends on the individual situation, so contact us today to start the discussion on how we can help you move your financial separation forward.
If you require further information on separation or divorce, check out some of our other articles:
Parenting arrangements determine how separated parents share the care and decision-making responsibilities for their child. As family lawyers, we believe these arrangements should always prioritise the child’s best interests and safety, emphasising stability, routine, and emotional well-being.
In Australia, the Family Law Act 1975 emphasises that children have a right to a meaningful relationship with both parents, provided there are no safety risks. Parenting arrangements can be informal agreements, formalised Parenting Plans, or legally binding Consent Orders approved by the Family Law Courts. We look at a few common parenting arrangements below.
Common Parenting Arrangements
Shared Care (Equal or Substantial Time with Both Parents)
Shared care arrangements aim to allow children to maintain strong relationships with both parents. However, they generally require a high level of co-operation between parents.
Popular Shared Care Schedules
- 2-2-3 Plan
- Monday & Tuesday: Parent A
- Wednesday & Thursday: Parent B
- Friday to Sunday: Parent A
- The next week reverses (Monday & Tuesday with Parent B, etc.).
- Best suited for younger children to maintain regular contact with both parents.
- More frequent transitions, which may not suit older children needing stability.
- 2-2-5-5 Plan
- Monday & Tuesday: Parent A
- Wednesday & Thursday: Parent B
- Friday to Tuesday: Parent A (5 days)
- Wednesday to Sunday: Parent B (5 days)
- Works well for older children with structured school and extracurricular activities.
- Provides more routine by ensuring the same parent has the same weekdays each week.
- Week-On, Week-Off – known as “week about”
- Children spend one full week with each parent before switching.
- Suitable for older children who can manage longer periods away from each parent.
- Alternating Weekends + Midweek Visit
- Primary parent during the week; non-primary parent has the child every second weekend, plus a midweek visit.
- A practical solution when shared care is not feasible due to distance or parental conflict.
Parenting Arrangements for Younger Children (0-4 Years)
Young children rely on secure attachments and consistent caregiving. Their ability to handle separation from a primary parent depends on their developmental stage.
Recommended Arrangements by Age
- 0-12 Months: Short, frequent visits (for example, 2-3 times per week for 1-3 hours may be suitable).
- 1-2 Years: Gradual introduction to longer daytime visits (up to 8 hours) with a trusted routine.
- 2-3 Years: Introduction of overnight stays if the child has a secure attachment to both parents.
- 3-4 Years: Up to a few consecutive overnight stays per week, depending on the child’s adaptability and needs.
Key Considerations for Young Children
- Breastfeeding: If the child is still breastfeeding, time arrangements can accommodate feeding schedules.
- Consistency: Both households should maintain a similar routine for naps, meals, and bedtime.
Gradual Transitions: Sudden or extended separations from a primary caregiver can cause distress.
Key Factors to Consider When Creating Parenting Arrangements
Age and Developmental Needs
When determining parenting arrangements, it’s crucial to consider the child’s stage of growth and development. Younger children often benefit from frequent but shorter visits with each parent to maintain a sense of security. As children grow older, they generally have a greater capacity to handle longer periods away from each parent, allowing for extended stays or weekend visits. Tailoring the schedule to fit a child’s developmental milestones fosters a sense of stability and supports their emotional and psychological wellbeing.
Parental Conflict
In situations where conflict between parents is high, it’s important to focus on reducing children’s exposure to tension or hostility. Strategies such as neutral drop-off and pick-up locations, or scheduled handovers can help create a safer, more predictable environment for children. Minimising confrontations not only lowers stress levels for everyone involved but also ensures the child’s relationship with both parents remains as healthy as possible.
Practicality
Parenting schedules should align with the reality of each family’s circumstances. Factors such as each parent’s work commitments, the distance between households, and the child’s school or extra-curricular schedule all play a role in determining a practical arrangement. Ensuring that transportation, time availability, and household logistics are manageable on a day-to-day basis helps create stability and reduces the likelihood of last-minute complications.
Consistency and Routine
A predictable structure is particularly important for younger children, who thrive on routines that provide a sense of security. Consistency in meal times, bedtimes, and overall daily activities can ease the transition between two homes. Establishing shared rules and similar expectations across households can further support a cohesive upbringing and help children feel less unsettled when moving from one environment to another.
Emotional Wellbeing
Above all, the emotional needs of the child should remain the top priority when creating parenting arrangements. Children should never feel as though they are in the middle of ongoing disputes or responsible for mediating between parents. By maintaining open communication, offering reassurance, and prioritising the child’s sense of safety, both parents can foster an environment where children feel loved and supported, regardless of changes in the family structure.
Challenges and Considerations
Managing High-Conflict Situations
Conflict between parents can negatively impact children. Strategies to reduce conflict include:
- Using a Parenting Coordinator or Family Dispute Resolution (FDR) services.
- Keeping communication child-focused and professional (e.g., email or co-parenting apps).
- Using supervised handovers if necessary.
When Shared Care is Not Ideal
While shared care is right for some families, it may not be appropriate in cases involving:
- Domestic violence or safety concerns.
- High parental conflict where co-operation is impossible.
- Young children who are not yet comfortable with extended separations from a primary parent.
Legal Considerations - the basics at a glance
Family Law Act 1975 (Cth)
The Family Law Act 1975 is essentially the cornerstone of family law in Australia. Contact us today to discuss how the Act applies to your particular circumstances and what arrangements may be most suitable for your children.
Family Court of Australia and Federal Circuit and Family Court of Australia (FCFCOA)
The FCFCOA handles family law disputes, including parenting matters and the enforcement of Parenting Orders.
- The FCFCOA (Division 1) and FCFCOA (Division 2) have the authority to make or approve Parenting Orders, Consent Orders, and Contravention Orders.
- If a parent contravenes a legally binding order, these courts can impose penalties and punishments, alter the parenting arrangement, or mandate programs aimed at improving parental compliance.
Domestic and Family Violence Protection Act 2012 (Qld)
This Queensland-specific legislation aims to protect individuals, including children, from domestic violence. It can override standard parenting arrangements if there are safety concerns in certain circumstances.
- Courts may issue Protection Orders that restrict contact between parties if necessary for safety.
- If the court deems there is a risk to the child or a parent, the protection order may limit or alter parenting time and handover procedures to ensure safety.
Child Protection Act 1999 (Qld)
The Child Protection Act 1999 provides a framework for Queensland child welfare agencies to intervene if there are concerns about a child’s safety, welfare or wellbeing.
- If there is evidence of abuse or neglect, the Department of Children, Youth Justice and Multicultural Affairs (or equivalent if the Department name has changed, which can happen) can investigate and, if necessary, take protective action.
Contact Daykin Family Law
There is no one-size-fits-all approach to parenting after separation. The above is general information only and is not intended to be relied upon or to be taken as legal advice. It is important that you get advice about your specific circumstances, and those of your family. The best arrangement is one that supports the child’s emotional security, routine, and overall wellbeing. Whether through shared care or a primary caregiving arrangement, the focus should always be on what is in the child’s best interests.
If you need legal advice on parenting arrangements, contact us today and we can guide you through the process and help create a plan that works best for your child.
After an agreement has been reached, you may sometimes run into issues with trying to understand the terms of an agreement and how it applies, especially in relation to a child’s care. After intense litigation and/or negotiations, it can be difficult at times to communicate with your former partner in a way that focusses on your child’s wellbeing and this difficulty in communicating can potentially lead to further conflict.
Tracing all the way back to the 1980s, parenting coordination has played a crucial role in helping separated parents to target this issue by improving their co-parenting relationship and assisting parents to manage any issues that come up in relation to a child’s living or care arrangements in a way that captures a child’s needs and best interests.
Who are parenting coordinators?
Parenting coordinators are generally highly specialised individuals who have a strong understanding of the family law system as well as extensive experience in working with families that have a high level of conflict or animosity. They often have a background in practising family law, family dispute resolution or preparing family reports, etc.
When do you usually see parenting coordination take place? What happens?
Parenting coordination is a process that is usually ordered by the Court or consented by both parents after a final agreement has been reached on a child’s care arrangements. The process starts off by the separated parents taking steps to officially engage the parenting coordinator to act in relation to their matter. After this takes place, an initial consultation takes place between the parenting coordinator and the parents to gain an understanding of the individual circumstances surrounding a family, assess the issues of concern held by either parent or formulate an action plan. Following this, a parenting coordinator may arrange joint sessions between parents to assist with implementing an agreement with respect to a child’s care and building a healthy environment which reduces a child’s exposure to conflict.
The process itself may take place in person or via video or telephone conference, and the parenting coordinator essentially focuses on reducing a child’s exposure to conflict by:
- Educating parents on how to best communicate with each other and make decisions together in a way that is primarily focused on a child’s needs;
- Putting forward strategies to assist with managing any dispute between parents in relation to the implementation of any agreements reached with respect to a child’s care;
- Assisting parents to understand the impact of a child’s exposure to ongoing conflict;
- Helping parents to adapt to the ongoing needs of a child; and
- Providing resources and/or necessary referrals, alongside doing other things necessary to best assist parents with respect to co-parenting and/or understanding a child’s needs considering a family’s unique circumstances.
Is parenting coordination similar to mediation?
No. Although parenting coordination is a type of dispute resolution, the key aim of parenting coordination is to educate separated parents on how to best resolve any disputes arising from the implementation of existing agreements with respect to the child’s care. This contrasts with mediation, where the key aim is to assist both parents and/or parties to reach agreement.
Another key difference is that parenting coordination is generally a non-confidential process which means that a parenting coordinator may be called upon to prepare a report or provide evidence in Court after receiving a request from either parent and/or by the Court to do so whereas mediation takes place in a confidential setting.
Parenting coordination is also an ongoing process as opposed to mediation which generally is a one-off session or sometimes series of sessions in complex cases.
How long does parenting coordination take place for?
Generally, parenting coordination can range from anywhere from a couple of appointments to up to around two years. It is also not unusual for parents to touch base with parenting coordinators to resolve an issue in dispute arising from the implementation of an agreement regarding a child’s care even after a period of two years.
What type of situations would benefit from parenting coordination?
Parenting coordination is used in situations where an agreement has already been reached with respect to a child’s care arrangement, however, a high degree of conflict or animosity is still prevalent between the parents and cause the following:
- Parents may find it challenging in order to make a decision together with respect to a child’s care;
- Parents may need assistance with discussing modifications to an agreement with respect to a child’s care having due regard to a child’s ongoing needs and age, after final agreement has been reached;
- Parents may struggle with communicating with each other for a range of issues, including any hostility, etc; or
- Parents may find it difficult to implement or follow the terms of a Court order or parenting plan with respect to a child’s care arrangement.
Parenting coordination is not appropriate for situations where it is likely that the process may threaten a child’s and/or parent’s safety.
Still not sure what is right for your situation? Get in touch with a family lawyer today
Daykin Family Law can provide expert advice on your options and the best course of action with respect to any issues that you may face whilst co-parenting with your former partner. Whilst an agreement may have been reached, engaging a family lawyer or seeking advice does not technically mean further litigation. Each scenario is unique, and we can assist you throughout this journey.
The Family Law Act 1975 governs the relationship between superannuation and divorce, including the division of superannuation during a divorce or separation. Under this law, superannuation is treated as a type of property, and its division is managed within the same framework used for other assets, like real estate or bank accounts. This means that, in the event of a marriage or de facto relationship breakdown, superannuation can be included in the property settlement process.
The Family Law Act allows for superannuation to be divided through a “superannuation splitting order,” making it possible to transfer a portion of one spouse’s superannuation to the other as part of an equitable property settlement. Dividing superannuation fairly ensures that both parties have financial security and stability moving forward.
Impact on Retirement
Splitting superannuation during a divorce can affect each party’s retirement plans. A reduction in superannuation savings may mean that both individuals need to reassess their retirement goals and financial stability in the long term. For some, dividing super may necessitate building additional retirement savings, adjusting financial plans, or considering other investment options.
Is Super Split 50/50 in a Divorce?
As your relationship winds down, you might wonder if your super will be split 50/50 in a divorce, but this is a common misconception. Superannuation is not equally divided by default. Each case is assessed individually, and the outcome depends on a range of factors.
Factors Considered in Division
When determining how superannuation will be divided, the court considers:
The duration of the marriage
Financial contributions each party made to the marriage
Non-financial contributions, including parenting and homemaking
Future needs such as:
Age and health of each party
Future earning capacity
Primary care responsibilities for children under 18
Relevant individual needs moving forward
The goal is to achieve a just and equitable outcome, considering the overall circumstances rather than strictly adhering to a formulaic split.
Super Division Example Scenarios
Scenario 1: Sarah and Tom were married for 25 years. Throughout their marriage, Sarah stayed home to raise their children, while Tom was the primary breadwinner and contributed significantly to his superannuation. Given Sarah’s limited superannuation balance and her reduced earning capacity due to years outside the workforce, the court may award her a share of Tom’s superannuation to ensure her future financial security.
Scenario 2: Emma and Jack were married for three years, with both contributing equally to their super funds and each having an equal amount of super. They have no children, and both have similar incomes and future earning potential. In this situation, Emma and Jack may retain the entirety of their respective superannuation balances as part of settlement which may be part of achieving a just and equitable outcome.
Scenario 3: Claire and Matt were married for 10 years. Matt accumulated most of his superannuation before the marriage, while Claire’s superannuation contributions primarily occurred during the relationship. The court may consider a division that acknowledges Matt’s pre-marriage contributions and in effect focuses only on superannuation accumulated during their time together.
Legal Framework
Superannuation Splitting Order
A superannuation splitting order is a court order that directs the division of a portion of the superannuation balance held by a superannuation fund from one spouse to the other. Either spouse can apply for this order, and it forms part of the overall property settlement process. The split goes from “super to super”, not from “super to cash” unless superannuation release requirements are met for example.
To obtain a superannuation splitting order, the value of the superannuation fund must be assessed, which often requires information from the superannuation fund itself. Once a value is determined, the court can issue an order specifying the amount or percentage of superannuation to be transferred to the other spouse’s superannuation fund. It’s worth noting again that the superannuation remains in the fund until retirement age or until eligible release, as it cannot be accessed immediately.
Consent Orders
In some cases, couples are able to reach an agreement on how to split their superannuation without requiring lengthy court proceedings. If both parties agree on the terms of the superannuation division, they can apply for consent orders, which are legally binding agreements approved by the court.
Consent orders allow couples to avoid the formal court process, offering a more straightforward and less costly approach. To apply for consent orders, couples must submit their agreement to the court for review, along with evidence that the agreement is fair and equitable. Once approved, the consent orders become legally enforceable, and the superannuation fund is directed to split the super as agreed.
Another option to record an agreement which includes superannuation splitting is to record it in a Binding Financial Agreement. Both parties need independent legal advice and there are strict legal requirements that must be met for such agreements.
Steps to Take When Dividing Superannuation
Valuing Superannuation
The valuation process can vary depending on the type of superannuation fund, such as accumulation funds, defined benefit schemes, or self-managed super funds. Each type of fund has different rules and methods for determining its value. For example, accumulation funds are typically valued based on their current balance, whereas defined benefit schemes may require actuarial assessments due to their complexity. Engaging the superannuation fund to obtain a valuation can help both parties understand the true worth of this asset, forming a strong foundation for equitable negotiations or court orders.
Seeking Financial Advice
Dividing superannuation can have long-term financial impacts. Consulting with financial advisors or superannuation specialists can provide valuable insights into these implications, helping each party make informed decisions. A specialist can advise on tax consequences, potential impacts on retirement plans, and ways to adjust financial strategies post-division.
Legal Representation
Involving a family lawyer is important when dividing superannuation, especially if complex issues or disputes arise. A family lawyer experienced in superannuation matters can guide you through the legal requirements, ensuring compliance with the The Family Law Act 1975 and protecting your interests. Lawyers play a key role in drafting and/or filing necessary documents, obtaining consent orders or drafting a Binding Financial Agreement as an example, or applying for superannuation splitting orders.
How Daykin Family Law Can Help
With years of experience in family law, Daykin Family Law is here to guide you through the process with clarity and compassion, ensuring you feel supported and informed every step of the way. We take the time to explain your options and work with you to find the best solution for your unique situation. If you’re looking for advice on superannuation division, reach out to our team today.
We are often asked about the process of child custody mediation by our clients. With years of experience as family lawyers, we understand that going through a divorce is tough – for you, your ex-partner, the children, and the wider family. When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision-making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.
In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) emphasises that first and foremost, couples should not use the Courts where possible and instead engage in child custody mediation before escalating to the Court. Even where a parenting order application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences before having the Court intervene.
Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have. If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing. However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances, and education.
When parents can’t agree during child custody discussions, that’s where a mediator comes in. A family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner. The goal of mediation in custody cases is to come to an agreement approved by both sides that can be turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.
Mediators are not there to make judgments or take sides. They are engaged to essentially chair a meeting between both parties and facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached that is in their children’s best interests.
How do I go about getting a mediator?
There are several options for child custody mediation. The most cost-effective is the use of the Family Relationship Centres, Family Relationships Australia, or other public and community-based services. These services can assist parents in discussing the issues and potentially writing up a new Parenting Plan. Legal representatives are not permitted in this process, however.
Private child mediation services also exist, usually at a higher cost. Your family lawyer can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights, and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.
Going to court is usually avoided and when undertaken is usually expensive. Friendly mediation allows you to come to an acceptable resolution swiftly and cost-effectively.
When isn’t mediation appropriate?
Sometimes, mediation isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected. If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.
Should I seek legal advice before going into child custody mediation?
The most effective mediation happens when both parties have sought legal advice about their circumstance beforehand. You are much more likely to be prepared, to understand the probable outcomes, your options, and how a Court might deal with your matter. By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.
Your lawyer can come to mediation sessions and advise you as the session progresses. Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.
How to approach mediation
Preparation is key to effective mediation. With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement. Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them. Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.
Mediation in custody cases isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and the guidance of the mediator, you are much more likely to reach a settlement that works for both of you.
What can be resolved in mediation?
The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education, 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.
What is the process of mediation?
When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation. If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.
Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what they hope to achieve from mediation.
Each mediation session can run for a shorter period, such as around three hours, or even a full day. In some cases, it can take several sessions to resolve some of the more significant issues. This is expedited if both parties come prepared and willing to compromise.
If no agreement can be reached in mediation, then a certificate will be issued by the mediator. Either parent can then file for parenting proceedings in the Court. Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend, or for another relevant reason.
I am considering child custody mediation, what should my next steps be?
Where possible, it would be prudent to speak to a family lawyer who can help you understand your options before appointing a mediator. Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and works closely with psychologists, social workers, and mediators to help you and your family stay out of Court wherever possible. We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.
At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible. Shannon Daykin is an experienced Family and Divorce Lawyer. An Accredited Family Law Specialist, Shannon was recently named a Leading Family & Divorce Lawyer (Recommended, Brisbane) and a Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us at (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
