Are you finding it difficult to negotiate an agreement with your ex about the arrangements for your children? Are you unsure where to start? We’ve created this step-by-step guide for you so you’re fully equipped and informed on how to complete this process either by yourself or with legal representation. Read on to find out how.
What is it:
Negotiation is where parties’ themselves or their lawyers exchange letters setting out what each party wants to achieve. Lawyers can also negotiate on behalf of parties by phone, or the parties and lawyers can negotiate over a round table conference.
why it's useful:
Negotiation is usually the first step in family law matters and can be quicker than going straight to Family Dispute Resolution. However, negotiation will only be successful if you and your ex are willing to negotiate the issues. In a parenting matter, negotiation will involve considering various issues, including who the children live with, who has responsibility for making long-term decisions about the children’s health, name or religion and how much time they will spend with the parent they are not residing with, etc.
how you can negotiate with your ex:
You can negotiate with your ex yourself by communicating with them directly by phone, text or email if it is safe to do so. For example, you might write to your ex and make them an offer that sets out the arrangements you say should be put in place for the care of the children. If you feel unsafe negotiating with your ex, we recommend you engage a Family Dispute Resolution Practitioner, as per step 2, or a lawyer to assist.
how we can help:
We can provide you with advice on your parenting issues so you can make an informed offer or counter-offer to your ex. We can also provide you with advice regarding your prospects of obtaining particular parenting Orders regarding various factors. For example, the children’s views, the age of the children, your work commitments and the distance between your residence and the other parent’s residence.
Family Dispute Resolution
inviting your ex and attendance
WHAT IS IT:
Family Dispute Resolution (FDR) is a process where a specially trained FDR Practitioner assists you and your ex to resolve some or all of the issues in dispute in your parenting matter. It is mandatory to attend FDR before making an Application to the Court seeking parenting Orders other than in very limited circumstances.
WHY IT'S USEFUL:
Family Dispute Resolution provides you and your ex with an opportunity to resolve any parenting issues by agreement with the assistance of an independent FDR Practitioner. Resolving issues by agreement can save you a lot of money and time and may also assist you in improving your co-parenting relationship with your ex. It also means you and your ex can make your own decisions rather than leaving the decision to a Judge.
what happens if your ex does not show up to family dispute resolution:
If your ex does not show up to FDR then the FDR Practitioner will issue a s 60i certificate and Certificate of Dispute Resolution, which you may file with any Application you make to the Court to show you complied with the requirement to attend FDR.
how you can engage in family dispute resolution:
There are a number of government-funded services which provide FDR at a reduced cost. However, there may be significant waiting times involved. Alternatively, you can engage a private FDR practitioner.
If you would like to participate in FDR you should raise this with your ex if you feel comfortable doing so. If you are not comfortable speaking directly with your ex, then you can ask the FDR Practitioner to contact them, and they will invite them to attend FDR with you.
If an agreement is reached at mediation, the FDR Practitioner may assist you and your ex to formalise the agreement by way of a Parenting Plan. If no agreement is reached, you should proceed to step 3.
HOW WE CAN HELP:
We can assist you throughout the entire FDR process, including assisting in preparing for FDR, providing you with advice on what may happen at FDR and attending with you at FDR. During FDR, we can provide you with advice on what offers and counter-offers to make to your ex so that you receive an outcome that is in the best interests of the children. If you and your ex reach an agreement, we can assist in preparing the documents to formalise the agreement or otherwise can provide you advice on whether you should apply to the Court.
Provide Notice of your Intention to Commence Proceedings
WHAT IS IT:
Since 1 September 2021, if you wish to make an Application to the Court for parenting Orders you must comply with pre-action procedures prior to making your Application to the Court. For parenting matters, this means you must attempt to resolve your parenting dispute at FDR, and if no agreement is reached at FDR, then you must provide your ex with Notice of your Intention to Commence Court Proceedings.
The Notice must address:
- The issues in dispute between you and your ex;
- The Orders being sought in your Application; and
- An offer to resolve the matter.
You must also provide with the Notice copies of the following documents:
- Prescribed Court Brochure – Compulsory pre-filing Family Dispute Resolution – court procedures and requirements, which can be accessed here;
- Prescribed Court Brochure – Before you file – pre-action procedures for parenting cases, which can be accessed here;
- Pre-Action procedures in parenting cases as found in Schedule 1, Part 2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which can be accessed here; and
- A copy of the Court’s Central Practice Direction, which can be accessed here.
Your ex will then have a minimum of 14 days to respond to this Notice. If your ex does not respond, you can file an Application with the Court. If they do respond, you will have a further period (a minimum of 14 days) to reply.
how you can send the notice of your intention to commence proceedings to your ex
There is no specific Court form that must be used to provide the Notice of your Intention to Commence Proceedings to your ex. You are able to draft your own Notice, provided it meets the requirements set out above, and email or post it to your ex.
HOW WE CAN HELP:
We can assist you with drafting the Notice to ensure you have complied with the requirements of the pre-action procedures, provide you with advice regarding the Orders you should seek in your Application and advice on an appropriate offer to make to your ex.
File your Court Application
WHAT IS IT:
If you are unsuccessful in negotiating an agreement with your ex on parenting matters and you have complied with the pre-action procedures, you are able to file an Application in the Federal Circuit and Family Court of Australia seeking parenting Orders.
how you can file a court application
To file an Application in the Federal Circuit and Family Court of Australia seeking parenting Orders you must file the following documents:
- An Initiating Application. This document sets out the outcome you want to achieve in Court on an interim and final basis.
- An Affidavit, if you are seeking the Court make interim parenting Orders. An Affidavit sets out the facts you rely on to support the Orders you want the Court to make.
- A Notice of Child Abuse, Family Violence or Risk which outlines any allegations of risk to your children.
- A Genuine Steps Certificate which outlines your compliance with the pre-action procedures and the genuine steps you have taken to resolve the matter prior to issuing Court proceedings.
- A Parenting Questionnaire which sets out details relating to the children such as their education, health and care arrangements during the relationship and since separation.
- An Undertaking as to Disclosure which states you are aware of your obligations of disclosure, you have provided to the best of your ability all disclosure documents and will continue to provide them through the matter.
how we can help:
We can draft your court documents for you and provide you with advice regarding any interim Orders you should seek the Court to make in your matter. We can help you identify what evidence you might need to include in your Affidavit to support the Orders you are seeking the Court to make.
If you're looking for any further information or require assistance from our Family Law team with your matter, please complete the below enquiry form for an obligation-free appointment.