The Family Law Act
It’s a huge document, but there are a few key sections of it that spell out what the court will focus on if they have to make a decision for you.
The key things the court considers when deciding who should make long terms decisions for children, or who should have parental responsibility for things such as religion, schooling and medical treatment, is covered in Section 61DA.
The things they consider when deciding how much time children spend with each parent, is covered in Sections 60B and 60CC.
The key things considered when deciding who gets what of the finances, is covered in sections Sections 90B-90KA if you were married, and Sections 90UA-90UN if you were in a de facto relationship.
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The Family Law Rules
This too is an enormous document, which details what you have to do, what you have to provide to who, and by when, throughout the Family Law process.
It provides the framework within which the Family Law Act operates, and within which you need to operate, in getting orders made, complying with them once they are made, and having them enforced.
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The Family Law process
There are a few exceptions, but most people need to genuinely attempt to negotiate and make arrangements with their ex partner, before asking the court to make a decision.
If you can agree on the way forward with your ex, you can develop a parenting plan, or formalise what you agree will happen into consent orders. You can file an application with the draft consent orders you’ve agreed to, and ask the court to approve them. Consent orders are enforceable, but parenting plans are not.
If you can’t agree, you need to prove you’ve tried, or why you can’t try, before you can file an application with the court. Proof of attempt to agree for the court, is a special certificate also known as a Section 601, which can only be provided by an approved mediator or relationship centre.
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The pre Court process
You must follow the court’s pre action procedures before filing an application for parenting and financial cases, which is:
1. Invite the other parties to participate in dispute resolution
2. Agree on a dispute resolution service, attend the service, and make a genuine effort to resolve things
3. If dispute resolution isn’t attended, or if agreement isn’t reached at it, write to the others stating the issues in dispute, orders you would like, make an offer to resolve the issues by a set date, and provide written notice of intention to start a court case. (This is called a notice of claim)
4. If you receive a notice of claim, you should reply, stating what you disagree with, what you will ask for if a case is started, and make a genuine offer to resolve things by a set date
5. Take further action eg file an application
The Court Process
The process for asking the court to make decisions in parenting or financial matters is:
1. File an application and supporting affidavit, detailing what you would like and why
2. File a response to an application and supporting affidavit, detailing what you would like and why
3. Attend an initial brief hearing
4. Attend a concilliation cenference with the other party and your lawyers
5. Attend directional hearings as required, and do what is directed by the judge or magistrate
6. File amended applications and responses, and further affidavits/evidence/family reports as directed
7. Attend a trial
Click here if you would like Legal Beavers to provide you more information on the Family Law legal processes and what’s involved at each stage.