Separating and have kids?

If you are separating or have separated, it’s natural to be overwhelmed and a little confused about where to start. It’s also a stressful time and it’s hard to work out the process.

This page helps to explain the Parenting Diagram and will give you an overview of your options. The options available to you will depend on whether you and your ex-partner can agree on what to do with your children.

If you and your ex-partner AGREE

If you and your ex-partner agree on what will happen to your children, you can write up details of the agreed arrangement in what’s called a Parenting Plan.

The benefit of a parenting plan is that it is flexible and can be changed at any point, however they are not immediately enforceable. You might still need to go to court to formalise the agreement.

Either of you can take the parenting plan to a lawyer to formalise the agreement – the lawyer will prepare a ‘Consent Order’, which will be binding, but if you want to make changes down the track, you’ll need to go back to court.

If you and your ex-partner CANNOT AGREE

Option 1: Go to Mediation

Mediation is a process in which a neutral third party (the Mediator) assists 2 parties in conflict to identify their issues, needs and desired outcomes; reviews options, then negotiate a mutually acceptable agreement.

Often, a mediation undertaken by an experienced and skilled Mediator will help you and your partner come to an agreement about what happens with your children. Usually, we are able to book in a mediation session for a new client within a few weeks. Our fees for a typical mediation are among the most competitive on the market.

Once an agreement has been reached, the Mediator will help you prepare a Parenting Plan, or if they think it necessary, may refer you to a Lawyer to get a Consent Form prepared.

If the mediation fails

If the Mediation failed, or you or your ex-partner refuse to attend a mediation, the Mediator will provide you with a ‘Section 60I Certificate’, which basically proves that an attempt at Mediation has been made. You will need this Certificate if you need to see a Lawyer to help you go to court.

You will need to see separate Lawyers, who will then work towards negotiating an agreement that both of you are happy with. The process can start getting costly with the involvement of Lawyers, and it’s often a lot more time-consuming.

If you are still unable to agree, even with the help of Lawyers, you will need to go to Court. Your own Lawyer will prepare your individual case, then organise a Barrister to go to Court. This is the most expensive option, with legal fees ranging from $50,000 to more than $200,000. It may be 2 years before your case is finally heard – and it is the judge who decides what happens to your children.

Option 2: Go to separate lawyers

Some people who can’t agree go straight to separate Lawyers rather than going through mediation. The Lawyers may be able to help you reach an agreement, in which case they will prepare either a Parenting Plan or a Consent Order. If the Lawyer fails to facilitate an agreement, they will refer you and your partner to mediation. The Lawyer will often present a panel of 3 Mediators for you to choose from.

Once in mediation, the process is the same as I’ve just discussed. More often than not, a skilled and experienced Mediator is able to help a couple come up with an agreement that both partners are happy with…and one in which the needs of the children are looked after.

If the Mediation fails, the case will need to go back to the Lawyers, then on to an expensive and often time-consuming court case. The judge will also decide who your children live with and when. It is more often than not a very stressful, prolonged process and can be damaging for the children involved.

Have more questions?

The least expensive and fastest way to reach an agreement is through Mediation. You decide together what happens to your children. Often communication between a couple improves through the process of mediation too.

Whatever stage you are at, please feel free to call me if you have any questions. I’m happy to help. Call 0419 679 779.