The term children’s matters in family law refers to many issues. These include deciding who your child will live with during and after separation, how they may spend time with your former spouse, who makes important decisions for your child, and how the child will communicate with each parent.
When separating, these are the types of questions which need to be decided upon between you and your former partner. These decisions apply to children of a marriage or de-facto relationship, and can also cover other relationship types like grandparents.
Child litigation relates to going to court over the children’s matters mentioned above. If you and your former partner cannot reach a reasonable agreement on these decisions, then litigation in the family court may be the last step left to take.
The nature of children’s litigation is that the court essentially gets to make decisions on who the child will live with, how they will spend time with the other parent, who will make decisions for the child and how the child communicates with each parent, among other things.
Going to court is a last resort. Our family lawyers are experienced in helping families reach a decision and keeping things out of court. However, if that can’t be achieved, we’re able to guide you through the court pathway.
"Parental Responsibility": refers to decision-making about major long-term issues affecting a child, such as where a child goes to school, their health issues, their name, and their religious and cultural upbringing.
In most cases, the presumption of equal shared parental responsibility applies. This means that unless the court has a significant reasons against this (such as the presence of family violence or child abuse), both parents should freely participate in decision-making about these major long-term factors.
"Live with": this is the term for who the child will live with the majority of the time, unless you and your former partner are going to have equal time with the children (i.e one week each). The finer details of this can be hashed out later.
"Spend time with": if the child will predominantly live with one parent, ‘spend time with’ is the term used to describe how the other parent will interact with and engage with the child.
"Best interest": this is the paramount consideration when the court determines what orders to make in respect of the child in child litigation.
"Family violence": means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples include assault, sexual assault, stalking and derogatory taunts.
"Family Dispute Resolution": mandatory counselling where you and your former partner attend some form of dispute resolution prior to court proceedings being commenced. Exemptions do apply.
"Child Support": a payment from one parent to the other parent for the support of the child financially.
How to avoid Child Litigation
When you and your former partner separate, if you are not going to be subject to any family violence or abuse, it is important to try and discuss issues such as who the child will live with, how they will spend time with the other parent, who makes the decisions for the child and how the child communicates with each parent.
This discussion can take place in numerous forms, for example going for a coffee with your former partner, using a third party such as a family member or friend to assist, via phone conversation, email, or through a counselling service.
If you can reach an agreement with your former partner, you can formalise the agreement through either a Parenting Plan or Consent Orders consent orders (more on these below). Our team can assist with drafting these documents.
Parenting Plan and Consent Orders
If you and your partner have come to some sort of informal parenting agreement between yourselves, this is a positive start.
In some cases, if you and your former partner are amicable (agreeable and on okay terms), you may be able to make an informal arrangement work well. If both parents would like to maintain some flexibility with their arrangements, are able to jointly make decisions about the child and there is no conflict or risk of either party reneging on the agreement, this is where a Parenting Plan can be useful.
A Parenting Plan provides the framework and structure of how the child’s living arrangements, spend time with arrangement, communication arrangements, schooling and other issues will look and be dealt with moving forward so you and your former partner are on the same page.
The downside to a Parenting Plan is that it is not legally binding. This means that if the Parenting Plan is breached, for example your former partner does not return your child to you after a visit, you can not apply to enforce the Parenting Plan (through the courts). This is why it is important to only consider a Parenting Plan if there is no conflict or risk of either party reneging on the agreement.
If you are worried about something going wrong (the agreement not being followed, one party may want to move away, get re-partnered or constantly change their mind), Consent Orders should be considered. Consent orders are legally binding and there are consequences for not following them .
Consent Orders deal with the same issues as a Parenting Plan, such as who the child will live with, how they will spend time with the other parent, who makes the decisions for the child and how the child communicates with each parent. However, after consent orders are properly implemented, they can be enforced if they are breached and this provides greater certainty and protection in regards to your agreement and your arrangements. Read more on Consent Orders.
Before You Commence Proceedings - Pre action Procedures
If you have tried to negotiate and discuss the issues mentioned above with your former partner, with no agreement being reached, going to court may be the final option you have.
If you think you need to go to court, then the Family Court mandates that you have to go through some pre-action procedures.
The first is that you attend mandatory family dispute resolution (FDR). This means you and your former partner have to attend counselling (or similar). You can attend this mandatory FDR at either a government funded service such as Relationships Australia or through a private mediator. You will get a certificate to verify that FDR was, at the minimum, attempted before proceedings start. However, there are possible exemptions to FDR, for example if there is child abuse, family violence, or other risks to your children.
We can assess whether you can apply for an exemption from FDR, or further advise you on how the FDR process works.
After you either obtain your Certificate or an exemption applies, we need to outline what the issues or disputes are from your perspective, and what you may be seeking in the orders. We will put your proposal to your former partner as a final proposal and effort to avoid commencing proceedings. Even though it is a mandated step, putting your proposal to your former partner from a lawyer carries more weight and credibility to your position. Depending on whether we receive a response, we can take further steps to try to resolve and negotiate matters further.
If this all sounds stressful, don’t worry. We will guide you step by step and narrow the scope of the journey towards your desired outcome. We take a very hands-on approach with these types of cases.
If our final attempt to negotiate does not work - it may be time to commence proceedings. We will work with you to understand where the relationship is at, what any current children’s arrangements are, and what potential orders you might be seeking for parenting matters.
Once we have worked out what you want and the best course of action, we will assist with drafting and lodging your court documents to start your matter in the Family Court.
How We Work - Expert Child Litigation Lawyers
Once your court documents are lodged, we take our most hands-on approach. We will work with you to best reach your objectives in a professional and outcome-focussed direction, with guidance and representation at every stage of the journey (based on what the court will consider). We will ensure that your orders are as child-focussed, and in the best interest of the children involved, taking into account your aims as much as possible.
Throughout the process, it is possible for you and your former partner to reach an agreement in between court events or at court events. The court may arrange for different types of hearings during this time period, for example case assessments, direction hearings, interim hearings and so on.
The court will require you to attend a court mediation, where many cases are settled early on in the process.
The aim is to help you reach an agreement before a final decision is made at trial, where the court will make orders that are in the best interests of your children, regardless of what you and your partner may believe to be right for your children. We will assist you with this and are able to finalise any agreements reached into Consent Orders.
We also take charge of corresponding with your former partner and their legal representatives, including any witnesses or family court professionals along the way.
If It Goes All The Way To Trial
If the matter goes all the way to trial, our child litigation lawyer's job is to realistically propose and argue to the court that your orders are the most practical, and in the best interest, of your children.
However, it may end up that the court decides that in the best interests of the child, a balance of both sides’ proposal or a different arrangement is best.
The court determines the best interests of the child in accordance with the Family Law Act. There are two primary considerations when determining the best interests of the child, being:
- The need to protect the child from any harm, neglect, abuse or family violence; and
- The child having a meaningful (if appropriate) relationship with both parents
Most cases that start off in the family court settle before trial. We will work with you to try to settle your case as early as possible.
Court proceedings are the ‘last resort’ to reaching an agreement.
Family court litigation can be expensive and drawn out. We know that in these sorts of settings, costs can accumulate and finances are tight. At MKI Legal, we are client focussed and look to find a way to help you.
That is why we offer fixed fee packages.
In arranging a fixed fee package:
- We work with you on different terms to find the right package for you;
- We can offer flexible milestone packages like drafting and completing your documents, representation up to certain court hearings or full representation;
- We can offer flexible payment options to break up your costs of litigation, depending on which package is right for you; and
- We partner with third party providers to provide payment plans for your case.
Once a fixed fee package is agreed, we will only charge you in accordance with our agreement. Therefore, it gives you peace of mind that you will know what you are up for, upfront.
Our family lawyers are here to help you
Not Sure What To Do Next?Free Discussion
The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.