Rebecca Holm
Family Law Barrister

Parenting changes

The family court has changed markedly since 2004 when major changes came in as to who can apply to the family court for a decision on the care of children.  

Lawyers may only file applications into the court under the Care of Children Act 2004 (parenting matters) where there is sufficient urgency to justify filing without notice.  This test is a high one as it takes away the other parties' natural justice right to be heard.  For the majority there is a new system in place.  I will set this out below:

In order to file an application into court you must show that you have completed a number of steps. 

You must attend Parenting through separation.  This is a course that will help you see what arrangements are appropriate for a child your child's age - ie for preschoolers it is suggested short frequent visits.  This course is free and you will have access to advice from psychologists as well as help to see the process through your child's eyes.  You will learn what to do if the child comes home with inappropriate comments form the other household.  I recommend this course to all clients who separate whether or not there will be a need to include the courts.  There is often a wait list and so I suggest signing up as soon as possible.

The next step I suggest is to seek legal advice,

 if you have a low income you may be eligible for funding for this advice if the lawyer is offers "FLAS", (Family Legal advice Service) you will need to take your drivers licence and proof of your income to the appointment.  I do not offer funded  "FLAS" but provide advice privately.

I suggest that you pay for at least a 1 hour appointment to make sure you are aware of the likelihood of success of your position and to better understand the process.

Before filing in court you must show that you have either attended Family Dispute Resolution or have an exception from the mediator or request an exemption in your court application due to risk issues.     

The mediation will usually involve yourself,  your ex partner and the mediator, you will need to specifically ask if you want a support person or your lawyer present.  Legal aid will not pay for your lawyer to be present.  What you agree on is exactly that an agreement in writing.  It will not be a court order and is not legally enforceable unless you file a consent into court and seek that it is made into a court order.  Many couples separate amicably and never get their arrangements made into a court order.  If your matter has been less amicable you may like to have the arrangements made into a court order, but be aware if the court appoints lawyer for the child to advise on the appropriateness of the arrangement to be made into an order you will be responsible for 1/3 of their costs each.

After mediation if there is no agreement, I suggest that you contact your lawyer for more assistance to file an application into court.  There is a filing fee of $220 unless you qualify for a waiver.

If your application is on notice you need to file your application under your own name.   

Once is is sworn or affirmed you will need to make copies so that you can file the original, keep a copy to serve the Respondent and keep a copy for yourself.  You will be responsible for serving the Respondent and filing an affidavit proving that you have.  Process servers can assist with this.  

The first step in court could be a case managers list.  This is not a time to appear in court but you will need to send the registrar an email prior to 4pm the day before notifying them whether the Respondent was served and if you are ready for the next step.

The issues conference is a date in court where you appear without your lawyer.  Both sides will be present without lawyers but you can request that you have a support person present.  I suggest at that conference you request that your lawyer can be present for the next step so it is judicially directed.  the judge will want to know bullet points of what is and isn't agreed to.  You may be set down for a directions conference with lawyers present in you are heading towards court or a settlement conference where you need to request lawyers be directed to be present if you think you may be able to agree.

At the settlement conference the judge will facilitate the two of you trying to reach agreement with your lawyers present.  If no agreement is reached the judge will not make any decision, you will be set down for a court hearing.  

If agreement is reached the judge can turn your agreement into a court order.  (if they believe it is int eh child's welfare )






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