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Children’s Matters & Family Dispute Resolution (FDR) according to the Family Law Act

BEST INTERESTS OF THE CHILD:

When a court is making a Parenting Order or parents are making a Parenting Plan in FDR, the Family Law Act requires that the best interests of a child are regarded as the most important consideration.

Children have a right to know both of their parents and be protected from harm and/or abuse.
Parenting is a responsibility that should be shared, provided this does not put children at risk of harm or abuse.
Parents and children benefit when parenting arrangements after separation are resolved outside the court system (Family Dispute Resolution/mediation). If this cannot happen, it may be suitable for the FDRP to issue a 60I certificate so either or both parents may proceed with an application to court regarding parenting matters and property matters.

WHAT CHILDREN NEED:

To feel loved and cared for by both parents.
To be free to have a continuing relationship with both parents.
To be free from parental conflict.
To know that their parents’ separation was not their fault.
To have time-sharing arrangements with both parents that take into account their developmental ages, stages and needs.

Parents need to think first of their children’s needs, when making parenting arrangements and parenting plans.

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Parenting Orders & Parenting Plans

WHAT THE LAW SAYS AT OCTOBER 2023:

Except in cases of family violence or child abuse, the court is required to make a presumption that it is in a child’s best interest for both parents to have equal shared parental responsibility. This means that both parents have the responsibility for important decisions about health, schooling, religion and legal decisions (e.g. getting a passport for a child or changing a child’s name). Equal shared parental responsibility does not mean equal time.
Where a Parenting Order gives the parents equal shared parental responsibility, the court must consider an order for the child to have equal time with each parent, or if this is not appropriate (not in a child’s best interests or not practicable), the court must consider a child having substantial and significant time with both parents, if this is practicable and in a child’s best interests. Substantial and significant time does not refer to ‘amount of time’ but to a child spending time over a mix of days, nights and holidays.

The family Law system encourages separating parents to work out arrangements for their children between themselves without having to go to court. Family Dispute Resolution (FDR) is a process that assists parents in making a Parenting Plan. A Parenting Plan under the FLA 1975 must be in writing, signed and dated by both parents, and it must be made free from threat, duress or coercion.

PARENTING PLAN VIA FDR/MEDIATION:

A Parenting Plan is a voluntary agreement that covers the day-to-day responsibilities of each parent, the practical considerations of a child’s daily life, as well as how parents will agree and consult on important issues about their children.
A Parenting Plan can be changed at any time with both parents’ agreement.
A Parenting Plan is not legally enforceable.
Your FDRP can assist parents, through the mediation process, to formulate a Parenting Plan that suits the requirements for meeting your children’s needs. It should be practical, simple, as concrete as possible and in the best interest of your children.
Accredited FDRPs have the necessary qualifications, skills and experience to assist parents in reaching agreements/Parenting Plans that are tailored to their specific circumstances.

PREPARATION FOR FDR:

Think about your children’s needs and requirements.
Think about your children’s age and developmental stage and what they may be able to cope with in terms of care arrangements.
Think of how you wish to be in your child’s life and what the other parent may wish—think about your roles as separated co-parents.
Think about your strengths as a parent and the other parent’s strengths as a parent—what can you each give to your children?
Think about any concerns you have as a parent that you wish to discuss and resolve with your children’s other parent in FDR/mediation.
Think ahead about a range of ways/options for the mediation/FDR session regarding how you may be able to work together to resolve some of your concerns and issues.

Information for Participants before Mediation for Family Law Property Settlement

Married or de facto parties who are separating may do a property settlement of their assets and liabilities at any time after separation. For married couples, this must be completed within 12 months of divorce, and for de facto couples, this must be completed within two years of separation unless, in each situation, the parties have applied to the court for leave to extend this time frame. The parties’ property settlement is formalised by way of Consent Orders lodged with the Family Law Court or by way of a Binding Financial Agreement.

Circumstances in which the court may set aside Consent Orders (FLA 79A) or Binding Financial Agreements (FLA 90K) are as follows:

There has not been a full and frank disclosure of assets/liabilities at the time of the property settlement (non-disclosure/fraud).
The agreement regarding the property settlement is impracticable.
There has been a material change of circumstances relating to the care of a child (accident or such that affects the child’s future needs).

The FLA ‘FOUR STEPS’ Approach to Property Settlements

Case law shows that there is a preferred approach by the court to the determination of an application brought pursuant to the provisions of s79 of the Family Law Act regarding property settlements. The mediation process will follow the same four process steps as that followed by the court in determining property matters.

These four interrelated steps are as follows:

Identify/value the assets, liabilities and financial resources (see below).
Assess the contributions made by each party before and during the relationship and after separation (see below).
Consider the future needs of each party (see below).
Divide the property/assets and superannuation in a way that is “just and equitable” (fair).

Another way of approaching the four steps is to ask:

What do we own, and what do we owe?
How and who made contributions – financial and non-financial, direct and indirect (by others)
What resources will be needed in the future?
How are we going to distribute our property?

Or
Note to mediator:
Property – you do far better when it is in child-focused mode.
If focused on future needs, it goes well.
When focused on contributions, it goes badly.
Identify what the assets are for before dividing them.
What are we here for, and what do we want to achieve?

1. Identifying the assets – types of assets may include:

Property of parties (family home) regardless of whose name it is in
Investment property(ies)
Motor Vehicles, boats, other major items, animals/pets
Home contents
Stocks & shares
A business(es)
Bank accounts
Superannuation funds
Antiques/artwork(s)
Trusts
Money owed to either party
Personal items (e.g. jewellery, golf clubs etc.)

Identifying the Liabilities – Types of Liabilities may include:
1. Home loan/s mortgage/s
2. Personal loan/s
3. Credit Card/s
4. Taxes to be paid
5. Loans from family members/friends…
  - Was it a loan?
  - Was it a gift?
  - Was it to one of them or both of the parties?

2. Identifying contributions of each party

Identify contributions by each to the acquisition, maintenance, or improvement of property/assets (as at the date of cohabitation, during the period of cohabitation and after separation). These may be:

Direct financial contributions (e.g. income, inheritances etc.)
Indirect financial contributions (e.g. gifts, financial support, free rent etc.)
Direct non-financial contributions (e.g. painting house, gardening, improving & maintaining property, home-maker and parent)
Indirect non-financial contributions (e.g. grandparents child-minding, renovations)
Home-maker and parenting contributions

As at date of cohabitation
During cohabitation
After separation

3. Identify any future needs (FLA 75(2)) of each party – considerations

Age of each party
Health of each party
Income, property and financial resources of each party
Earning capacity of each party
Care of a child/ren under 18
Commitments to support others
Standard of living
Duration of marriage/relationship
Care of dependents other than child

4. ‘Just and Equitable’ division

The division of assets following a marriage or de facto relationship breakdown is looked on by the courts to be providing the fairest and most equitable split of assets in the given circumstances so as to allow both parties to move on and be independent of each other.

Seeking Legal Advice

There are many outside factors that may impact your particular circumstances. It is recommended that you receive advice from a family lawyer and/or your accountant, tax advisor and/or financial advisor prior to commencing a property settlement mediation.