STEP 2: REACHING AN AGREEMENT

2.1.   Formalising Your Agreement

You do not have to put your agreement in writing but it is highly advisable that you do so. If you wish to formalise your agreement,you have the following options:¹

• Include your agreement in an application for consent orders to the Family Court.
• Include your agreement in a parenting plan (if your agreement is about parenting arrangements)
• Make a binding financial agreement (if your agreement is regarding property or financial arrangements, including spousal maintenance)

The three options are explained in detail below.

2.2.   Consent Order

What Is A Consent Order?

A Consent order is a court order that is made with the agreement of the parties involved. You can apply for consent orders in the Family Court using the Family Court’s Application for Consent Orders kit.² You will need to fill in an application, include your agreement in the application and file it in court. Once the Court has approved the orders, they become legally enforceable.³ Please note that the Court will notapprove an agreement about children that is not in the best’s interest of the child, regardless of the fact that all parties involved have agreed.⁴ Similarly, any agreement regarding property must be ‘just and equitable’.⁵

2.3.   Parenting Plan

What Is A Parenting Plan?

If your agreement is solely regarding your children, you can make a parenting plan. Parenting plans are written agreements mad between the parents of the child. It has to be dated and signed by both parents of the child. ⁶ A parenting plan may deal with parenting arrangements such as where the child will live, the time a child is to spend with another person and the allocation of parental responsibility for a child. ⁷ A parenting plan is not legally enforceable. It is different from a parenting order, which is made by a court.⁸

2.4.   Binding Financial Agreement

A binding financial agreement is a written agreement between parties regarding property (such as division of assets) and financial matters including spousal maintenance.For financial agreements to be binding, all parties must have signed the agreement and have received independent legal and financial advice prior to signing.⁹

If you cannot resolve your dispute out of court, or the dispute is not suitable for FDR, you may chose to proceed to the next step, which involves going to the court.

STEP 3: FILE YOUR APPLICATION IN COURT

3.1.   What Orders Can You Apply?

If you have reached an agreement out of court, you can apply for a consent order to formalise the agreement as explained at 2.2.

If you cannot resolve your dispute out of court, or the dispute is not suitable for FDR (e.g. involves family violence),¹⁰ you can approach the court and apply for the orders below:

• Financial orders
• Parenting orders

3.2.   Parenting Orders

What Is A Parenting Order?

A parenting order is an order that deals with children and parenting arrangements such as: ¹¹

• the person or persons with whom a child is to live;
• the time a child is to spend with another person or other persons;
• the allocation of parental responsibility for a child;
• the communication a child is to have with another person or other persons;
• maintenance of a child;
• any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Who Can Apply For Parenting Orders?

Either or both of the child’s parents, the child, grandparent of the child or any other person concerned with the care, welfare or development of the child may apply for parenting orders.¹²

3.3.   Financial Orders

What Is A Financial Order?

A financial order is an order that may relates to property and other financial matters including spousal maintenance.¹³

Who Can Apply For Financial Orders?

Any person who is or has been a party to a marriage or a de facto relationship may apply for a financial order.¹⁴

3.4.   Which Court Do I Apply To?

Primarily, family law matters are dealt with in the Family Court and Federal Circuit Court. The local or magistrates courts may deal with family law matters in limited circumstances.The Family Court generally deals with more complex matters. This may include parenting cases involving allegations of sexual abuse, family violence, or mental health issues, and financial cases involving valuation of complex financial instruments.¹⁵ It is advisable that you seek legal advice regarding which court to file your application.

3.5.    Should I Seek Legal Advice Before Going To Court?

It is certainly advisable that you seek advice before going to court. You can choose to represent yourself in court or have a lawyer represent you.

3.6.   Time Limits

Various time limits apply :¹⁶

• Divorce: After 12 months separation.
• Financial Orders: Within 12 months of your divorce order coming into effect or 2 years of the breakdown of your relationship.Upon expiry of the time limit, you will have to seek permission from the court to apply for a financial order.
• Parenting Orders: No time limits apply.

STEP 4: THE OTHER PARTY FILES A RESPONSE

Once a party has filed for orders, the other party will be notified. The other party can still apply for orders by stating the orders sought in a document called a response, and filing the document in court. Please note that there is no disadvantage for filing orders after the other party has done so. ¹⁷

STEP 5: PRELIMINARY CONFERENCES

Before bringing your matter in front of a judge, there are a number of preliminary steps that both parties will have to undertake. The steps involved depend on whether you are applying for a parenting or financial order, or both.

5.1.   Parenting Cases

Parenting cases generally involve the following steps:¹⁸

1. Initial procedural hearing (conducted by a registrar)
2. Child responsive program (conducted a family consultant)
3. Procedural hearing (conducted by a registrar)

A. Initial procedural hearing (conducted by a registrar)

Who is a registrar?

A registrar is a court lawyer.

What does An Initial Procedural Hearing Involve?

It allows the registrar to assess the case and determine whether the case is suitable to be resolved in the Family Court. It also allows for the parties to reach an agreement.¹⁹

B. Child responsive program (conducted family consultant)

Who is a Family Consultant?

Family consultants are children and family experts who assist and advise people in family law disputes.²⁰ The court can make an order for a party to meet with a family consultant and for a family consultant to write a family report. ²¹(see 6.4) The family consultant may interview the children, the parties and those significantly involved in the child’s life.Communications with a family consultant are not confidential and can be disclosed to the Court.²²

What does a Child Responsive Program involve?

It comprises a series of meetings between a family consultant, the parties and children. The program seeks to encourage parties to focus on the children’s best interests and assist parties in reaching an agreement where possible.²³

C. Procedural Hearing (conducted by a registrar)

What happens at the procedural hearing?

The purpose of the procedural hearing in a parenting case is to enable the registrar to make procedural orders such as :²⁴

• referring parties to family counseling, family dispute resolution and other family services;
• appointment of an independent children’s lawyer; (see 6.4)
• payment of the hearing fee;
• completion by each party of a parenting questionnaire;
• filing of undertakings as to disclosure;
• allocating the first day before the Judge.

5.2.   Financial Cases

Financial and property cases generally involve the following steps :²⁵

1. Case assessment conference (conducted by a registrar)
2. Conciliation conference (conducted a family consultant)
3. Procedural hearing (conducted by a registrar)

A. Case assessment (conducted by a registrar)²⁶

A case assessment aims to assist parties to reach an agreement. It allows the registrar to assess the case and determine whether the case is suitable to be resolved in the Family Court.If you have reached an agreement, the registrar will make legally binding orders and you do not have to proceed to trial.If you cannot not reached agreement, the registrar will direct you to either:

• Attend a conciliation conference or
• Proceed to trial.

B. Conciliation conference (conducted a family consultant)

A conciliation conference provides a further opportunity for the parties to reach an agreement. Each party at a conciliation conference must make a genuine effort to reach agreement.²⁷ If you reach an agreement, the registrar will make legally binding orders and you will not have to proceed to trial.If you cannot not reached agreement, you will have to attend a procedural hearing.

C. Procedural hearing (conducted by a registrar)

A registrar conducts the procedural hearing at the end of the conciliation conference, or if no conciliation conference takes place, at the end of the case assessment conference.

What Happens At The Procedural Hearing In A Financial Case?

The purpose of the procedural hearing in a financial case is to enable the registrar to make procedural orders such as :²⁸

• the clarification of any disputed items in the balance sheet; and
• payment of the hearing fee;
• filing of undertakings as to disclosure;
• allocating the first day before the Judge.

5.3.   Parenting and Financial Cases

Parenting and financial cases generally involve the following steps:²⁹

1. Case assessment conference
2. Child responsive program
3. Conciliation conference (if appropriate)
4. Procedural hearing