The way we “talk” in Family Law has changed over the past 10 years in the hope that it will become easier for parents to understand. This is great, because there’s no point drafting documents when no one (apart from lawyers) knows what the words actually mean.
There are still some frequently used Family Law “terms” that can be a little confusing:
- Lives/Spends Time With
- Parental Responsibility
- Family Dispute Resolution/Mediation
- Conciliation Conference
- Parenting Plan
- Consent Orders
So here’s what you need to know:
Lives With/Spends Time With
Once upon a time, we used words like ‘full custody’ and ‘access’ when talking about arrangements for children.
The problem with words like that is that they can be confusing – what exactly does full custody mean? Does it just mean that your child lives with you – or does it mean you make all the decisions as well?
So nowadays, in Australia, we use the terms “lives with”, “spends time with” and “parental responsibility” when dealing with children’s matters– which are pretty self-explanatory and much easier!
“Lives with” and “spends time with” only refer to exactly that - which parent your child lives or spends time with. Just because your child lives with you most of the time doesn’t mean that you make can automatically make all the decisions about them. This brings us to:
Parental Responsibility
Parental Responsibility has nothing to do with the amount of time your child spends with you – instead it’s all about who makes, or is consulted on “long term” decisions like:
- where the child goes to school,
- religion
- passports and international travel
- health-related/medical decisions, and
- where the child lives (such as if you wanted to relocate).
Usually, parents will have equal shared parental responsibility for their children . This is exactly what it sounds like – you and the other parent will be equally need to be consulted and both need to be part of the major decision-making process.
In some cases, in extenuating circumstances, there may be an Order sole parental responsibility. This means that the parties or the Court considers that in the child’s best interests, only one parent should be the decision-maker.
However, if you have sole parental responsibility, that doesn’t mean you can just move overseas without letting the other parent know. Even if they don’t help make the decision, sometimes the Court orders you to advise the other parent of changes or important aspects in your child’s life.
Family Dispute Resolution/Mediation
Family Dispute Resolution/Mediation Conferences are negotiation processes you can go through to have discussions with the other party about children and/or property matters and (hopefully!) come to an agreement.
If your dispute involves children, you are required to go through the mediation process to prove you’ve made a “reasonable” attempt to negotiate before you can go to Court.
Family Dispute Resolution /Mediation can happen at any time after your separation. For instance, you can try going through the process to see if you can sort things out before lawyers get involved. You can arrange this through public services like Relationships Australia and the Family Relationships Centre. Usually, each person will attend a session on their own with the Service before coming together for a joint session.
For children’s matters, your lawyer might arrange for you to attend a Family Dispute Resolution Conference through the Legal Aid Commission (if you’re eligible for Legal Aid). In this case, both parties can have a lawyer there with them.
Participating in mediation/family dispute resolution can be a very successful process which is often less stressful and less expensive than going through Court.
Private mediations can also be arranged through lawyers and a private mediator is engaged and any costs associated can be equally divided between the parties.
Conciliation Conference
A Conciliation Conference is similar to Family Dispute Resolution/Mediation, but it happens in Court. It’s usually arranged for property matters or family violence matters. A court-appointed mediator or Judicial Registrar will be there. They are trained to assist you in discussing and negotiating your matter and if needed, let the Court know when an agreement has been reached.
Parenting Plan
A Parenting Plan is a document that outlines an agreement reached between you and the other parent in relation to your children. This states things like:
- when the children spend time with both parties
- when the children will communicate with each of you, and
- how the children will get from one household to the other
It can be as flexible and general as you like, and it can contain agreements that wouldn’t normally be in a court Order, like routines and bedtimes.
Anyone can draft a Parenting Plan reflecting an agreement – A public services like Relationships Australia or the Family Relationships Centre, or solicitors during Mediation. Both parents will sign the plan. Sometimes the plan will be witnessed, and if the solicitors are there they may sign it as well.
Now, it’s important to note that a Parenting Plan isn’t a court documents and it isn’t legally binding.
The benefit of making a Parenting Plan is if the matter does go to court in the future, it is evidence of an agreement that was reached that everyone signed and knew about. Parenting Plans also make great stepping-stones to entering into long term (final) Court Orders.
Consent Orders
Consent Orders are Orders that everyone agrees on about children or financial matters – and it’s a legally binding document.
You don’t actually need to Court to get Consent Orders – if you attend Mediation/family dispute resolution where solicitors are present, any agreement you make can be drafted into Consent Orders. You and the other party and/or your solicitors will sign the Orders, and they’ll be sent to the Court along with another form called an Application for Consent Orders.
Once they have been approved by the Court, they’ll be returned to you.
Even though Consent Orders are legally binding, it’s important to note that this doesn’t mean that the police become involved if the Orders are breached or broken.
For instance, if Consent Orders state that the children live with you and the other parent doesn’t return them, many people think you can call the police and they’ll return them to you. If that happens to you, unfortunately the police don’t have any jurisdiction to enforce Court Orders. The best thing to do in this instance is contact a solicitor and seek advice about the process to have the children returned to you. You might need to file an urgent application in the Federal Circuit Court if it can’t be resolved quickly (that’s something your lawyer can help you with).
As lawyers, we always try to make sure that our clients fully understand the meaning of the terms used during their matter and any Orders that are put in place. If you can interpret the “legalese”, it not only means that you’ll have a head start in understanding your matter, but you might also avoid potentially costly mistakes. So if you don’t understand the terminology or legal documents you have been provided with, you need to seek advice from your solicitor or a service such as Legal Aid as soon as possible.