If you are unable to come to an agreement concerning the child, you may need to bring an applicant to the Court for Orders in relation to arrangements for the child.
Step 1 – Mediation
Before you can commence proceedings in the Family Court you will need to attend mediation with the other parent and make a genuine attempt to reach an agreement in relation to the arrangements for the children. Only once the parents have done this will each parent be issued with a section 60i certificate. This certificate is necessary to be able to commence proceedings in Court for children’s matters.
If the other party refuses to attend the mediation or does not make a genuine attempt to reach an agreement then they will not be issued with a section 60i certificate but you will. This will enable you to commence proceedings.
The mediation needs to occur with a qualified family dispute resolution practitioner. Mediation can be obtained through private organisations or government funded organisations. Both organisations have their advantages and disadvantages.
Private mediations may cost between $3-4,000 for a mediator on average if the mediation goes ahead however can usually occur quicker with the added benefit of having a lawyer present if you choose. Further if the other parent refuses to attend, the mediator may reduce the price to simply seeking payment for the cost of issuing a certificate.
Government mediations do not cost you anything to attend however due to the high demand the average time for a mediation to occur is approximately 3 months but vary from each organization. Lawyers are not permitted to be present during these mediations.
If domestic violence is present to such an extent as to impede a parent’s ability to negotiate, the mediator will determine whether the matter is appropriate for mediation and if not will issue a section 60i certificate to the parents.
If the matter is urgent you may be able to file an Application with the Court without the necessity of attending mediation.
Step 2 – Court Documents
To commence proceedings you need to complete and file the following documents:
Section 60i Certificate or Non-compliance with section 60i certificate document;
Notice of Risk;
You must also pay the filing fee or file a health care card.
You will need to file 3 copies of the Initiating Application, Notice of Risk and each Affidavit in the Court.
You must then have someone over the age of 18 years give a copy of the documents to the other party.
The Initiating Application is the form to be used to outline for the Court the Orders you wish the Court to make. There will be two sections for you to list the Orders sought. The Orders will be Interim Orders and Final Orders. Interim Orders are those temporary orders you wish the court to make until the matter can go to a hearing. Final Orders are those you wish the court to make once the matter has reached a hearing. Both Interim and Final Orders can be the same or different depending on the circumstances.
The Affidavit is the evidence you want the court to consider when determining what orders to make. It is in essence your story. It’s important that your Affidavit is limited to only matters within the writer’s direct knowledge. The Affidavit should not contain comments that are third hand or are merely assumptions of events. For example you can say “x said words to the effect of ‘you are a horrible mother and will never see the children again’. X said this with a raised voice.” you cannot say “x abused me”.
It is also important that the paragraphs are numbered and succinct. A useful tool is, if the information you wish to include in the Affidavit does not fall under one of the headings outlined in section 60CC then you need to consider whether that information has any place in the Affidavit.
At an Interim hearing each party is limited to only one Affidavit unless the evidence cannot be given except by another person.
Step 3 – Attending at court
It is important to turn up on time for your matter. If you are late and your matter is heard you could run the risk of orders being made against you.
At the interim hearing you will not be required to cross examine any witness. Rather the court will rely upon your Affidavit to determine whether the Interim Orders sought should be made or any other orders necessary to progress the matter to the final hearing. As such you need to direct the court to the necessary sections of your Affidavit and the other persons Affidavit to assist the court with their decision.
In addition to making orders to determine who the child should live with and spend time with on a temporary basis the Court may also make orders for the following issues:
At final hearing all parties or persons giving an Affidavit will need to give evidence and be present for cross examination. This is where the evidence is tested and each party attempts to put forward their own case to the judge. The judge will then consider the evidence and give his or her decision. This will then be converted into typed orders and sent out to each party in a couple of weeks.