Children and Separation

The Process

Coming to some sort of agreement around who has contact with your children after you and your partner have separated is a distinctly different legal process than the divorce process.  The steps are quite similar for working out the division of property and in most instances both matters will be discussed together when you’re in court but it’s important to know that they are separate legal actions.

After separation occurs, you can immediately start this process – unlike getting divorced, there is no requirement to be separated for a year before you can apply.

Firstly, you need to decide if you want to go down the path of going to court or if you feel you can settle the matter out of court.   If you agree on child contact arrangements with your partner, you can apply for consent orders from the court which then become legally enforceable.  Since 95% of cases that are started in court finish with consent orders anyway, it would be a good idea to make an attempt towards getting some sort of agreement with your ex partner before you go to court.

Even if you don’t feel like making an attempt to negotiate, the court actually requires you to do so anyway.  You must attend dispute resolution before filing an application and the certificate of participation in dispute resolution must be provided with your application.

Filing an Application

If no agreement can be reached, you can start court proceedings by filing an application.  With this application, you will need to inform the court in writing what sort of contact you would like with your children.  You may want them to live with you, but allow periodic contact with your ex partner or you may only want to see them once per fortnight for example.

Note that there is a difference between contact with your children, where they spend time with you, and “equal shared parenting”.  You can still be an equal shared parent but only spend time with your children every second weekend.  Equal shared parenting means that you have an equal share of input into major decisions that affect your child – for example which school they will go to, which religious denomination they will be raised as (if any), and so on.

First court appearance

Your first appearance in court will give both parties and more importantly the court a chance to decide how the case will proceed.  You may have a case assessment conference, which is before registrar, and allows you another chance for you and your ex to reach an agreement.  If you cannot reach an agreement here, the registrar may recommend other services to help settle the dispute.

If there are any immediate matters that need to have a decision and interim orders made, you will have a directions hearing (before a judge).  The judge will decide how the case will proceed and will make any orders he feels are appropriate (eg. What sort of contact you will have with your children until the next court date).

During the directions hearing, you will get assigned a date for the conciliation conference and in some cases a final hearing.

Conciliation Conference

A conciliation conference is a required step before going to a trial and is another chance to negotiate with your ex-spouse.  It is conducted by the registrar and you won’t generally appear before a judge and no orders will be made.  If, after this meeting, you and your ex haven’t come to an agreement a trial date will be set (if it hasn’t already been).

Pre-Hearing Conference

This conference is again conducted by a registrar, and is a meeting for the court to make sure all documents have been submitted to the court and everything is ready for a trial to commence.  The registrar will want to know how many witnesses you intend to call and to make sure that all documents have been provided to each party.

Final Hearing

The final hearing is the “real” court case, as seen on TV.  Only 5% of cases that are started reach this point – most will finish by way of consent orders being made.  The length of a full hearing will depend on the complexity of the case, but most take 1-2 days.

During the hearing, evidence is presented and both parties may be examined or cross examined by lawyers (or you if you’re representing yourself).  Witness; family, friends, and new partners, or whomever deemed applicable to the case, may also appear and give evidence.

After all the evidence has been presented, the judge will consider everything and deliver the judgment.  It probably won’t be delivered immediately after the hearing as the court will take time to consider the case.  Orders will then be made and even if you don’t agree with them, you will have to accept them.

What sort of contact can I expect to have with my children?

As with most of the questions about family law matters, the answer is “it all depends”.  The main factors will be how much contact you had previously while you were still in your relationship with your ex and the age of the children.  If you weren’t the primary carer and your child is very young (less than 2 years old), you may get no overnight contact and only limited daytime contact.

Of course if there’s any sort of history of family violence or inappropriate behavior from either side, the will significantly affect the outcome and you (or your ex partner) may not get any contact if the court feels it’s not in the child’s best interest.

How long will it take?

This will depend on the court, how busy the judge is and how quickly you and your ex partner come to an agreement (or not).  It can take 12-18 months or longer to get to a final hearing after filing an application, depending on the workload of the judge you get assigned.

Divorce in Australia
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