Family Lawyers Sydney

Separation

Separation can be an upsetting experience for everyone involved. At Sydney Criminal and Family Lawyers we understand this is the most stressful of times in your life.

If there are children of the relationship it is important that they have support through this difficult time.

When you separate, you and your former partner need to make important decisions about the future care of your children and how to divide your property, money and belongings. Working through these issues is often difficult and emotionally challenging.

Separation can also be a stressful time for your children. They may experience a range of emotions that are difficult for them to deal with and talk about with you. They may also behave in ways that are unusual for them.

There are services in the community that can help:

you and your partner work through any problems in your relationship
you and your children adjust to separation or divorce
you and your former partner reach an agreement, and
you and your family adjust to and comply with court orders.

Legal advice

If you are considering separation or have separated, you should seek legal advice. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement with your former partner without going to court. You can get legal advice from a:

Legal aid office
Community legal centre, or
Private law firm.

Non-court based family services

People considering separation or divorce, and those affected by it, are encouraged to use services in the community to help resolve issues.

Community-based services that can help you and your family include:

FAMILY COUNSELLING ? a process in which a family counsellor helps people deal with personal and interpersonal issues relating to families, relationships, marriage, separation and divorce.

FAMILY DISPUTE RESOLUTION is a process in which a family dispute resolution practitioner, independent of all the parties, helps people resolve some or all of their disputes with each other during and after separation and divorce.

Parties are required to attempt to reach settlement in relation to matters unless the Court grants the applicant an exemption. If agreement cannot be reached at mediation the parties may be issued with a s60I Certificate stating that the matter is unsuitable for mediation. Depending on your subjective circumstances you can file your application in different courts. If your application is in relation to Children and or Property and you were married you can file your application in either the Federal Magistrates Court of or the Family Court of Australia If you were previously in a De -Facto relationship you can file your application in the Family Court or the NSW Supreme Court. No matter what your application is you must be mindful of your potential legal costs and disbursements. If you are not in receipt of a grant of Legal Aid and are represented by a private lawyer and or barrister your legal costs and disbursements could be high. In this regard it is prudent, if you are considering a property application as the Court does, the total pool of assets of the relationship net of debt including but not limited to the value of any real property, the estimated discharge of any mortgage held over real property, superannuation, shares, money held in bank accounts and household chattels. The Court will consider the financial and non financial contributions of both parties to the relationship.

Confidentiality in non-court based family services

Generally, what is said during family counselling and family dispute resolution is confidential and cannot be used in court later. There are exceptions; for instance:

where there is a legal requirement to report a suspicion or risk of child abuse and violence or threats of violence, and
the Court may order that a family counsellor or family dispute resolution practitioner give evidence of an admission or disclosure of abuse made during a session.

Reaching an agreement

What are the advantages?

Reaching an agreement with your former partner can offer many advantages, such as:

you make your own decisions
you greatly reduce the financial and emotional costs of legal proceedings
your continuing relationship as parents, if you have children, is likely to work better
you are more able to move forward and make a new life for yourself, and
you may improve communication with your former partner and be better able to resolve disputes in the future.

Parenting plans

A parenting plan is a written agreement that sets out parenting arrangements for children.

Because it is worked out and agreed jointly, you and your former partner do not need to go to court. Unless the Court orders otherwise, you and your former partner can agree to change a parenting order (made on or after 1 July 2006) by entering into a parenting plan. A parenting plan is not legally enforceable. It is different from a parenting order, which is made by the Court.

For more information about parenting plans and how they work, speak to staff at a community-based service and/or seek legal advice.

Consent orders

A consent order is a written agreement that is approved by the Court. A consent order can cover parenting arrangements for children as well as financial arrangements such as property and spouse or de facto maintenance.

Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing.

Going to court

If you cannot reach an agreement, you may consider applying to the Court for orders. Going to court is often a stressful time for many people. It can also be expensive and time consuming. However, sometimes it may be the only way to deal with a dispute.

Even when a court application is filed, it is possible to reach an agreement, at any stage, without the need for a court hearing. In fact, a judicial officer is needed to make a final decision in only a very small percentage of cases started in court.

Compulsory Family Dispute Resolution

Before you apply to the Court for a parenting order, including those seeking changes to an existing parenting order, you need to attend Family Dispute Resolution (FDR) and obtain a certificate from a registered FDR provider.

There are some exceptions to this requirement, such as cases involving family violence, child abuse, or urgency. For more information about these exceptions, see the fact sheet Compulsory Family Dispute Resolution ? court procedures and requirements.

Pre-action procedures ? Family Court

In the Family Court, parties intending to apply for parenting and/or financial orders must follow pre-action procedures, which include attending dispute resolution, before filing an application.

The aim of the pre-action procedures is to explore areas of resolution and where a dispute cannot be resolved, to narrow the issues which require a court decision.

Steps involved in court proceedings

1 Pre-action procedures^2 Court application filed

2 First court appointment or hearing

3 Child dispute services (see ?Family Consultant? below)

4 Court based dispute resolution (financial)

5 Preparation for final trial or hearing*

6 Final trial or hearing

Agreement may be reached at any stage, with consent orders made and the case finalised.

^ only applies in Family Court

* may include additional court appointments or hearings

Family Consultants

Family consultants are psychologists or social workers who specialise in child and family issues after separation and divorce.

Family consultants can help you and the Court in many ways. They can:

help you and the other party resolve your dispute
assist and advise the Court and give evidence about your case
write and provide a report to the Court about your family, and
advise the Court about the services provided to families by government, community and other agencies. Their work with you is not confidential and may be used in court at a later date.

Compliance with court orders

When an order is made each person bound by the order must follow it. There are services in the community that can help you and your family adjust to and comply with court orders.

If the order is not complied with, you may file a court application. The Court can make an order to enforce an existing order. The Court may also make an order that discharges, varies or suspends the order or renews some or all of an earlier order, or adjourn the case to allow a person to apply for a further order that alters the existing order.

If the Court finds a person has breached (contravened) a parenting order, it may impose a range of penalties. For more information about this, see the fact sheet Compliance with parenting orders.

Recovery orders

A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:

■ parent of the child

■ person who has a parenting order that states the child lives with, spends time with or communicates with that person, or

■ person who has parental responsibility for the child.

A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered.

A recovery order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child.

Who can apply?

You can apply for a recovery order if you are a:

■ person who the child lives with, spends time with or communicates with as stated in a parenting order

■ person who has parental responsibility for the child in a parenting order

■ grandparent of the child, or

■ person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.

How do I apply?

An application for a recovery order should be filed in the Federal Magistrates Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order.

On the application form, you must say what orders you are asking the Court to make. For example:

The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren & date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the [child/ren] may be found.

You must also file an affidavit to support your application. You should include details of the following points, if applicable:

■ A brief history of the relationship between you and the person the child is presumed to be with

■ A list of previous court hearings and family law orders

■ Details about the child and where he/she usually lives

■ How and when the child was taken from you or not delivered to you

■ Where the child might be and the basis for that belief

■ Steps (if any) that have been taken to find the child

■ Why it is in the child?s best interests to be returned to you

■ The likely impact on the child if a recovery order is not made

■ Any other factors relevant to the case.

Note ? This is not a complete list and may vary depending on the circumstances of each case. It is essential that all relevant facts are disclosed, particularly evidence relating to any complaint that the person with the child might have about you.

Your chances of recovering the child will improve if you have information about where the child is likely to be. You should collect as much information as possible to help authorities find and return the child.

What happens at court?

In deciding whether to make a recovery order, the Court must regard the best interests of the child as the paramount consideration. The Court may make an order which allows or requires a person to return the child to you at a designated time and place. In some cases, the Court may make a recovery order which authorises or directs a person or persons, such as police officers, to take appropriate action to find, recover and deliver the child to you.

Note - The Court is not a child recovery agency. If the Court makes an order authorising or directing another person or persons to find, recover and deliver the child, you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).

The AFP will not generally recover a child, except in exceptional circumstances, until you are able to receive the child and are close by. This means you may need to travel to collect the child when he or she is recovered.

The AFP has offices in each capital city and some regional locations. Go to www.afp.gov.au or look in the White Pages for contact details.

When the child is returned to you, you must notify registry staff at the Court as soon as practicable.

Can I stop the child being taken overseas?

You can take steps to prevent a child being taken overseas. For more information, see the fact sheet ?Children and international travel after separation?.

What if the child still isn?t found?

In some situations, you may ask the Court to issue other orders to help locate the child; for example:

■ Location order ? requires a person to give the Court information about the child?s location

■ Commonwealth Information order ? requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child?s location that is contained in or comes into the records of the Department

■ Publication order ? allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.

What if the child has been taken from Australia?

If a child has been taken from Australia without your consent, or has not been returned to Australia, you should contact the Commonwealth Attorney-General?s Department for assistance.

Australia has an agreement with some countries to return abducted children to their country of usual residence. The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). For a list of countries party to the convention, go to www.ag.gov.au (look under the international child abduction link) or call the Department on 1800 100 480.

If the child is not in a Hague Convention country, you should seek legal advice.