Questions around the process of child custody mediation are often asked by our clients. We all know that going through a divorce is tough – for you, your ex-partner, for the children and 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) suggests first and foremost that couples do not use the Courts where possible and instead engage in child custody mediation prior to 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 prior to 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 mediation, that’s where a mediator comes in. Your 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 is to come to an agreement approved on both sides that can by turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.
Mediators are not there to make judgements or take sides. They are engaged to essentially chair a meeting between both parties, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which is in their children’s best interests.
How do I go about getting a mediator?
There are a number of options for child custody mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new Parenting Plan. Legal representatives are not permitted in that process however.
Private child mediation services also exist, usually at a higher cost. Your family law 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 not usually a preferable course of action and is usually an expensive one. Mediation gives you the opportunity to come to an acceptable resolution swiftly and in a cost-effective way.
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 individual 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 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 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 and 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 you 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 a number of sessions to resolve some of the more significant issues. This is obviously 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 that can help you to understand your options prior to appointing a mediator. Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and work 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 as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and 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 on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
If you’ve landed on this page, the chances are you’re looking for advice on the divorce process and how to apply for a divorce. If you have been separated for 12 months and you can satisfy the court that this is the case, then you have grounds for divorce. In this article, we’ll answer some of the most common questions regarding divorce applications so you can make an informed decision about your next steps.
Daykin Family Law offer a range of services to support the process of divorce and separation, including child support, child custody, property settlements and family mediation services. View our blog for a wealth of information on various Family Law matters, and if you need further assistance, do not hesitate to get in touch.
Who can apply for divorce?
To be eligible to apply for a divorce in Australia, either you or your spouse must answer yes to at least one of the following:
- Were born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia).
- Are an Australian citizen by grant of Australian citizenship (a citizenship certificate will be required).
- Are lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months.
You’ll need to satisfy the Court that you have lived separately and apart for at least 12 months prior to making a divorce application and that there is no likelihood of getting back together and resuming married life.
How do I know if I have grounds for divorce?
Since the introduction of the Family Law Act in 1975, the only grounds now available for divorce is that the marriage has broken down irretrievably Section 48 of the Family Law Act 1975 (Cth) sets out that to establish the fact that a marriage has broken down irretrievably, applicants need to prove both that they have been separated for at least 12 months and, secondly, that there is no reasonable likelihood of the parties resuming cohabitation.
What if we still live together? Can we still apply for a divorce?
It is possible to be separated and still live together in the same home. Mostly this happens for just a short period of time, however for some spouses it can extend to months and even years. Provided you meet criteria of a 12 month separation prior to your divorce application, you are able to proceed, however you will be required to provide the court with additional information.
These are usually in the form of two affidavits; one provided by you and one by a family member or friend, detailing the separation. For example, this could include things like changes in sleeping arrangements, the division of finances, household duties and a reduction in joint attendance at social events, amongst others. There isn’t a set list, but you’ll need enough evidence to persuade the Court that you are no longer a couple.
If you want a divorce but have been living under the same roof, it is advised that you seek legal advice.
How do I submit a divorce application?
How you submit a divorce application depends on whether it is a sole application or a joint application. If both parties agree, you do not need to serve any documents on the other party and attendance in Court is not required unless you select to attend.
However, if you make a sole divorce application, the process is more complicated. Firstly, you will need to inform the Court that you are applying for a divorce, making you the ‘applicant’ and your spouse the ‘respondent’. Divorce papers will need to be served on the other party, and the application must be stamped with the seal of the Court by the Court Registry. You may not serve the documents yourself. You must use a third party (such a paid process server, friend or relative), or by pre-paid post to the respondent’s last known address if they sign a document acknowledging they were served.
If a sole divorce application is made, and you and your spouse have children under the age of 18, a Court appearance will be required. If the respondent opposes the granting of a divorce order, they can file a response in the Court within 28 days (for example, if the respondent can demonstrate that the parties haven’t been separated for 12 months).
What if my spouse refuses to accept the divorce application service, or cannot be located?
If your spouse refuses to sign for the divorce serving (known as an Acknowledgment of Service) then the server must provide a photograph of the respondent (spouse) and for the server to confirm that this was the person served and that they refused.
If you are unable to locate your spouse, you can still apply for divorce but the Court requires evidence that you have attempted to locate them, either by serving divorce documents at their last known address, making enquiries with the respondent’s family, friends or colleagues . This will need to be backed up by evidence (affidavits and postal receipts, for example). An order for substituted service may need to be sought.
What happens after I file my divorce application in Court?
Once the application is filed, the registrar needs to be satisfied that ‘irretrievable breakdown’ (as detailed above) exists. If there are no children under 18, then there is no need for either party to appear personally at a hearing. However, if there are children of the marriage under 18, one of the parties is required to attend (most likely applicant).
The court order for divorce is granted in 2 steps.
- Step 1:
If the Court is satisfied that arrangements for the children have been made then a Court Order (or Divorce Order) will be made. - Step 2:
The Divorce Order then becomes final, usually within a month and a day, and this becomes the actual date that the Divorce Order takes effect. A copy of the Divorce Order will be mailed to you and your ex-spouse, stamped with the Court seal. After the Divorce Order takes effect, you are able to re-marry if you wish.
Do I need a lawyer to process my divorce?
Some people apply for a divorce without a lawyer, which can be suitable if the application is joint. It can be more complicated, as we set out above, for sole applications.
Is a Divorce Order all I need to finalise my financial matters?
No, a divorce is only the legal severance of your marriage. To finalise your property settlement and/or spousal maintenance agreement in a binding and enforceable way, further steps need to be taken to enter into either an application for consent orders or a Binding Financial Agreement. We can guide you through the process and advise on which avenue is best for your situation.
If you can’t reach agreement on property settlement and/or spousal maintenance matters, then mediation may be a good way forward. Court proceedings should always be a last resort.
Are there any critical time limits I need to be aware of once I am divorced?
Yes, once a Divorce Order takes effect terminating your marriage, a time limit starts ticking. You and your ex-spouse will then both have 12 months to file in the Court for property settlement and/or spousal maintenance. If you don’t, you may be out of time and this may cause you financial detriment. You can seek the Court’s leave to proceed with an application out of time, but success is not guaranteed and it can be a costly process.
We recommend that you obtain expert family law advice at the time a divorce is applied for to ensure that your interests are protected.
Steps needed outside of a Divorce Application
After separation, you can be left to make very important decisions at what can be an emotional, tumultuous time. It is therefore recommended that you seek objective, expert legal advice to ensure that you receive the best outcome for you and your family.
It is also advisable to obtain legal advice if you need assistance in making parenting arrangements, dividing assets such as property after separation or in the event that spouses are separated but living together.
If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help. Shannon Daykin is an experienced Family and Divorce Lawyer, recently named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and 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 on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
There is a misconception that a divorce will also resolve your property settlement with your ex-partner: It will not. Obtaining a divorce order will not give you finality in your financial relationship with each other.
Divorce in Australia
For divorce in Australia, parties must complete a divorce application and file it with the court. The court will consider this material at a hearing, the date of which is set down when you file the application (usually 3 or so months after filing). If a divorce order is granted, this will provide you with a legal separation, however it will not automatically alter your property interests under family law.
To be eligible to apply for a divorce, you must have been separated from your spouse for at least 12 months. There can be circumstances where parties may have separated but they remain living together under the same roof for a period time or have had short periods of reconciliation and then separated again on a final basis. You may still be eligible to make a divorce application in these situations. You should speak to a lawyer to discuss your particular circumstances and confirm your eligibility and the court’s requirements.
Options for finalising a property settlement
Separate to a divorce, a property settlement will provide you with an alteration of property interests (for example, determining who will keep the house, or whether it needs to be sold; who will be responsible for the credit card liabilities; how superannuation will be split between you etc). The process for finalising a property settlement will depend on whether the parties have agreed or can come to an agreement regarding how their property interests should be divided.
If both parties agree
If a separated couple agrees to alter their property interests and the terms of that property settlement, they can have a legally binding and enforceable agreement by:
- Entering into a binding financial agreement; or
- Applying to the court for consent orders.
Using either option, or in some cases both options, your lawyer will need to take your detailed instructions in relation to the property that you own (including assets, liabilities, superannuation and financial resources), the contributions made by both parties throughout the relationship and any factors which may impact on the parties moving forward (such as age, health, income disparity, care of children etc). They will assess your entitlement and confirm whether your agreement is in line with what the courts would consider is just and equitable. They will then draft the required documents for you to affect the property settlement. There will be different processes from this point depending on which option you choose: binding financial agreement or consent orders.
If both parties cannot agree
Mediation is a process whereby the parties attend upon a mediator, with or without their solicitors present, to attempt to come to an agreement about the division of their property interests. The mediator should assist the parties to keep the conversation to relevant information and work with you to generate options for terms of settlement which are acceptable for both of you. If an agreement is reached at mediation, you can approach a lawyer to draft the relevant documents and finalise the property settlement.
Court proceedings are started as a last resort if the parties cannot agree on how to divide their property interests. Proceedings are not usually commenced without attempts to resolve the matter by way of negotiation or alternative dispute resolution as they can be costly and emotionally taxing on all parties involved.
A formalised property settlement will usually be required
It is important to finalise your financial relationship with your ex-partner. An informal agreement, even if it is in writing, may not be binding and one of the parties may be able to make an application to the court seeking an arrangement that is different to the agreement made between you (provided they apply within the relevant time limit). Therefore, having your agreement formalised through a binding financial agreement or consent orders is necessary to protect yourself moving forward. A lawyer can assist you with this and guide you through this process.
Time limitation for property settlement – married couples
There is a 12-month time limitation for a married couple to apply to the court for a property settlement or for spousal maintenance after a divorce order takes effect. Whilst the court can grant leave to apply outside of this time limit, it can be a difficult and costly process and success is not guaranteed.
In some cases, we recommend that parties enter into substantial negotiations before divorcing which often results in a resolved property settlement before an application for divorce is even made or a divorce order is granted.
What if we weren’t married?
Former de facto couples are substantially afforded the same rights under family law legislation to a property settlement as married couples. The time limitation is different however for de facto couples, whereby they have 2 years from the date of separation to make an application to the court for property settlement or maintenance. Like married couples, the court can grant leave to apply outside of this time limit but, again, this can be a difficult process and success is not guaranteed.
Talk to an expert
Contact Daykin Family Law to discuss your options with our Accredited Family Law Specialist & Director, Shannon Daykin. Let us help you navigate separation, divorce and the property settlement process in a cost effective and efficient manner.
