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FAQs: Family Law & Mediation

My partner and I have recently separated; they moved out and are currently not seeing the children. What should I do?

First and foremost, it is important to get legal advice immediately in relation to your current situation as all circumstances are different. Your family lawyer should be able to give you both legal and practical advice in relation to dealing with separation.

I have received a letter in the mail about attending a Family Dispute Resolution Conference (mediation). What should I do?

In most circumstances you should agree to attend this mediation, as it will give you an opportunity to try to resolve with the other parent, including making appropriate parenting arrangements for the children. The goal of the FDRP mediator is to assist the parties in reaching this agreement. You should listen to any practical advice they give you. The mediator is not there to give the parties legal advice.

When can I refuse to attend mediation (FDRC)?

You can refuse to attend mediation if you feel threatened by the other party or there are allegations of child abuse.  However, it is not uncommon for one of the parties to have a DVO and the parties can still mediate. You can request that the mediation takes place by way of shuttle conference, so the parents are in separate rooms and do not have to come into contact with each other. You can also request that you attend the mediation by telephone, particularly if you live in different cities and it would be impractical for you to attend the mediation in person.

What if I don’t attend mediation (FDRC)?

If you do not attend, the FDRP mediator will issue a certificate that allows the other party to file an application in the Family Courts. If the mediator deems that mediation is inappropriate, the certificate will state this, however, if you unreasonably refuse to attend mediation this will be on the certificate and the Judge can take it into consideration when you go to court.

Should I get my solicitor to attend mediation with me?

Most mediation services run by Relationships Australia and other family relationships centres are designed for the parents only and will not allow either party to have a solicitor. If you would prefer a solicitor assisted mediation, you should contact our office and we can arrange a private mediation with the other parent.

What if we don’t reach an agreement?

Provided you made a genuine effort to resolve, the mediator will issue a certificate stating that you have unsuccessfully attempted to resolve at mediation. The mediator can indicate that both parties made a genuine effort, only one party made a genuine effort, or neither party made a genuine effort.

What does the mediator expect in relation to making a genuine effort?

Tips for making a genuine effort include being child focused and putting aside any differences you may have had with the other parent in the past. The mediation is about making arrangements for a smooth transition between the households. Parenting is about compromise and you will need to be prepared to compromise at mediation if you are going to reach agreement. However, if you do feel strongly about any particular issue you should be firm and ready to articulate your reasons.

What if we reach an agreement at mediation?

The parties will formalise this agreement into either a parenting plan or consent orders. The parenting plan will set out the living arrangements for the children and the time they will spend with the other parent. The parenting plan may only be intended for a few months or you may be able to agree to final living and spending time arrangements for your children which in most cases are finalised by joint consent orders.

My children are at school during the day, does that mean the other parent will get every weekend?

Not necessarily, school aged children will usually spend every alternate weekend with the other parent during school term and half of the school holidays.

My ex has told me they’re entitled to have the children week-about because that’s the law. Is this right?

No. The court only has to consider equal time with both parents as it depends on the circumstances of each particular family. The court will only order week-about if it is in the best interests of the children. The parties will need to have an existing co-parenting relationship and good communication. It is more common to see week-about by agreement than it is to see it ordered by the court, and usually only when the children are school aged.

Does this mean the other parent will only get to see the children on weekends?

Again, it depends. However, usually the other parent will also have the children for one or two overnights during the week in which they will not be spending time with the children on the weekend.

I want to agree to the other parent seeing the children more, but I am concerned this will affect my child support benefits and I would not be able to afford living expenses. What should I do?

You will need to contact the Child Support Agency or Centrelink to discuss your particular circumstances, but usually your benefits/child support will not be affected unless the other parent has over 30% care of the children. You can try using the child support estimator and Centrelink calculator as a guide.

If you and the other parent agree to a different amount of child support than assessed, you can enter into a Binding Child Support Agreement for an agreed amount (more/less) that the other parent is to pay, which can include other expenses such as school fees and private health insurance. A binding child support agreement can be registered with the Child Support Agency requiring the other parent to pay you a particular amount or collected on your behalf. Please contact our office to discuss.

If you can't find an answer to your query from the set of FAQs above, contact our experienced Family Lawyers on 1300 253 203.