Separating from a relationship partner is stressful. But you don’t need us to tell you that!
What we can tell you is how to manage the pocess as well as you can.
There are going to be emotions. It might get messy or you may withdraw for a time to recover.
What doesn’t have to happen is family violence, abusive behaviour and harm to your children.
You can negotiate the process respectfully and without unnecessary cost but you will probably need a bit of help.
Agreements are better than orders
The first thing to realise is that negotiating a financial separation agreement, Child Support and parenting agreements for your children is always going to be less costly and has a higher likelihood of compliance than going to court to try and force your former partner. Going to court may be the last option open to you but it shouldn’t be the first thing you try.
Knowing your rights and obligations helps you to remain in control of your emotions and your decisions. Separation does not have to be a time of terrible battles, massive cost and destruction of respect.
If you get the right information and support you can separate with dignity, a minimum of stress and cost and most of all demonstrating to your children that your love for them is greater than any anger you feel towards their other parent and is something that guides your choices.
1. Get clear on what you want and why you want it
Do any of these sound like you (and your motivations)?
“I just want to get the negotiations over as quickly as possible. I don’t care what happens I just want it over!”
That may be misplaced urgency.
I will give them anything they want if they agree to me seeing the kids / or agrees to leave me and the kids alone.
This may be misplaced or an inappropriate reaction to fear.
I want them to pay for hurting me. I don’t care what it costs me.
The self-harming, destructive emotion of spite.
I don’t know what my legal rights are but I don’t want to spend any money on talking to a family lawyer.
Fear and/or ignorance. Getting good quality legal advice is a sensible investment. Knowing your rights and obligations is a must.
I will wait and see what he / she proposes and then decide what to do.
This is disempowered fear based thinking. Just reacting to others hands over your power to them.
I will go to court. The judge will see that I have been wronged and find in my favour.
This lacks understanding of the family law court process.
The system is out to get me. What’s the point of even trying?
This may be a self-realising victim mentality and / or paranoia. Learning about the way the system works is important but it isn’t out to get you.
I can’t eat / sleep / think or am eating / sleeping / thinking too much without being able to reach any kind of plan
Your mental health may be suffering due to the stress of your current siuation. This is common if you have been living with family violence and your family home has been a toxic environment. Go and see your family doctor. They can help with a mental health plan and referral to a psychologist.
Avoinding family violence
Working in Family Law as a Family Dispute Resolution Practitioner I see a lot of people who become dis-empowered and victimised.
They feel justified in being angry and abusive to their partners and easily find others who will back them up and help them to justify their behaviour.
Perhaps you are trying to deal with that sort of behaviour from your former partner.
Perhaps you are the one who is being angry and lashing out.
Perhaps both of you are out of control and acting out of character.
Whatever is going on if you are not clear on what you want and don’t have an achievable plan to get there you are likely to be feeling pretty bad / sad / mad or frightened about now.
Interact Family Law Options (FLO) Consultations are designed to help people who are considering separating or those who have already separated.
We help you to understand your options, to develop SMART goals for your short and longer term future and put in place a Goal Plan to help reach those goals.
2. Work out Child Support
Child Support is an obligation that every parent has.
It is not a hire fee for time with your child.
You don’t legally get to not pay child support that has been assessed because time with your child has been suspended or is only available through supervised access.
Time with children and how you will share care is another aspect of your responsibilities as a parent and read on for more information about that.
At the moment though lets look at Child Support.
The first question most parents ask is how much should I pay or be paid?
Child support CAN BE calculated by the Child Support Agency using a formula designed to take into account each parents circumstances and needs.
The Child Support Agency is a section of the Federal Government Department of Human Services and it administers the legislation (laws) around child support.
You don’t have to go through the Child Support Agency and it is perfectly acceptable to pay more than the amount evaluated.
If you want to pay less than the amount assessed you can probably expect that at some point you will be contacted by the Child Support Agency seeking money to support you child.
In order to receive some forms of Government financial assistance the parent providing the majority care for the child may have to make a child support application.
If your child’s other parent has applied for child support they may not have had a choice if they need financial assistance. It is pointless being angry at them for an obligation that the government enforces.
If you are entitled to child support there is help available. A history of family violence is not a good reason for not pursuing financial assistance.
This link goes to the Parent’s Guide to Child Support on the DHS website. https://www.humanservices.gov.au/individuals/subjects/parents-guide-child-support
The links include:
- Your options for managing child support such as:
- how to apply for child support if you are a parent or non-parent carer for a child,
- how to apply for a child support assessment,
- how to make a child support agreement which can include cash payments and non-cash items such as school fees / health insurance etc,
- information about court ordered child maintenance for children over 18 who are disabled or seeking further education,
- how payments can be made and received,
- tax implications,
- when a parent is living overseas and
- how reviews can be made when your circumstances change.
- Child Support Assessment – the online tool which will tell you how much you have to pay or should be paid as long as your family isn’t too complicated.
- Collecting Child Support – there are three ways that child support can be collected within Australia:
- self management which is a private arrangement between the carers of the child
- private collection which is when a child support assessment, parenting agreement or court order sets out how much should be paid but you make the arrangements about how that money will be paid between you
- child support collect is for when the parent who has to pay will not do so voluntarily and the child support collection agency has to collect the money on behalf of the parent who is entitled to receive it under a child support assessment, parenting plan or court order. Often these payments are taken directly from wages before the parent with the child support obligation receives it.
- Paying Child Support – this page provides more information about how child support can be paid and how you can get non-cash contributions to your child’s welfare and needs recognised as being child support.
- Living outside Australia – this page provides information for parents to understand their options if they or the other parent is living outside of Australia.
3. Develop a Parenting Agreement
A Parenting Agreement is just that. An agreement between parents about care for children and can include anything that needs to be negotiated such as:
- the time that the children spend with each of you
- where the children will sleep each night
- where they will go to school
- what will happen if they are not going to school such as younger children, student free days, school holidays and when the child is sick
- what you will tell each other and the notification you will give if the child is sick
- how you will work together to help you child with their education (including homework), extracurricular activities (such as weekend sport, drama and social groups)
- what to do about religion if that is important to your family
- what to do about special days like birthdays for you and your child and other family special events, Christmas, Easter and other religious holidays important to your family, fathers day, mothers day and anything else that would intrude into normal time with the child
- what to do about holidays with ether parent and what sort of away from home travel is OK and what needs special permission or can’t happen right now
- how you are going to share costs (if not already covered by Child Support)
- any special needs your child has that is in addition to the list above
- how you each agree to speak to the child about each other and other family members
- how you will introduce new partners and other changes to the child
- if you have not yet separated how you will manage the separation process to minimise the stress your child experiences
There might be other things that need to be discussed and sorted out by your family.
A Parenting Agreement may be written but unless you both agree to it, sign and date the agreement it does not have any legal status. If you do both agree, then you should sign and date it so that your Parenting Agreement becomes a Parenting Plan.
Click this link to find out more about Family Dispute Resolution which is a great way to get help to work out your Parenting Agreement if talking it through without help is difficult for you.
Sometimes people think that because you can’t work it out without conflict by yourselves that Family Dispute Resolution (FDR) will be useless and the only option is to go to court.
If you are considering going to court spend $198 and book in for an Interact FLO Consultation to get a clearer idea of your options and to check in on the legal advice you are working with.
If you are not able to provide us with the basic information needed for Family Law Legal Advice then we will let you know.
Don’t make a decision like choosing to go to court that will probably cost you tens of thousands of dollars if you are legally assisted without a good understanding of the potential risks and rewards.
Don’t risk self-representing without current, accurate and easily understandable legal advice from a Family Lawyer. If you mess up you can be ordered to pay their costs. Don’t do it. OK?
Family Dispute Resolution (FDR)
The process of FDR is designed to help people who are in dispute to reach agreement. That is why it is called Family Dispute Resolution rather than “a Meeting for Families Who Already Agree.”
Interact Support offers two types of FDR –
- Family Dispute Resolution which costs $198 per hour. The fee is able to be paid by one or shared between you. The first part of the process is an individual pre-mediation session with each of you followed by joint sessions held by Video Mediation or in a face to face meeting if we have a practitioner near you.
- High Conflict Family Dispute Resolution this service is for families where there is a history of family violence. As with our standard FDR the fee is able to be paid by one or shared between you.
The first part of the process is an individual pre-mediation session with each of you followed by either Video Shuttle Mediation or Mediator Facilitated Negotiation.
There are no joint sessions in this process as it is offered for families where due to past family violence one or both of the participants feel unable to speak and negotiate directly.
Agreements are better than orders however if your relationship is high conflict it is a good idea to get orders after you reach agreement.
You don’t have to work everything out at once if you are struggling to cope. Get the urgent stuff sorted and then come back for more detailed negotiation once the dust settles a bit.
Consent Orders are orders of the Family Court that are written by you and stamped by the court. You have to have agreement for cons
If you have Court Orders that your family has outgrown and are no longer following, have never really worked because they were a hasty negotiation between lawyers at court or for any other reason you can in the majority of the cases put in place a Parenting Plan to avoid any risk of a breach of the orders and being forced back to court for a Contravention Hearing.
If the new arrangements are working you can apply for Consent Orders to replace the old orders with new updated ones. Not normally necessary but if your family conflict is subsiding and you want new less restrictive orders this is an option. Our Consent Order Service.
A note on shared care
Shared care or significant and substantial care by each parent has been shown to be in the best interest of children providing that both parents are capable of providing adequate and safe care.
Adequate and safe care means that the parent is “good enough” not that they are perfect or the same as you. A lot of the conflict that arises in relation to Parenting Agreements and living with Parenting Orders is our expectations.
The other parent is not you, they do not agree with you and they will not do things the same way you do. That should be your starting point and that it OK.
What they should not do is use the child as a pawn in their financial and/or emotional battles with you (and you shouldn’t either), they should provide the child with their basic needs of food, shelter, clothing, sufficient sleep, protection from pornography and other age inappropriate activities. They should not physically, sexually, emotionally or psychologically abuse them.
The more that each parent is able to step into their role as a sole parent while they have the children when they are with them and co-parent when they are working together towards their children’s best interest the better for the children.
If you are the parent that the children live with most of the time and you are trying to deny time with your child’s other parent or their family because you feel stressed, frightened, lonely or sad when the children are not with you then you need to think about what you can do for you when they are away from you.
The children’s job is not to make you feel better about yourself or to give you a purpose in life.
If you genuinely believe that they are at risk book in for a Free Safety Planning Session to discuss your concerns.
If you are trying to get more time with your child because you feel stressed, frightened, lonely or sad when the children are not with you then you need to think about what you can do for you when they are with their other parent. The children’s job is not to make you feel better about yourself or to give you a purpose in life.
If you want 50/50 time with your children because you don’t think anything less than their other parent is fair then stop thinking about your “rights” and think about what is best for your child.
It might be spending half of their time with you and half with their other parent it might not be. That decision shouldn’t be based on what is fair to adults it should be based on what is best for children.
4. Develop a Property Agreement and then Property Orders
If the relationship is over then you should work towards a property settlement.
- Sometimes that takes a bit of time to work out and people take several years before they finalise their property settlement.
- Some people stay living separately under the one roof until they reach a property settlement because they can’t afford to leave or have been told that “possession is 9/10th of the law”.
Do you know what your rights are with regards to property?
You really should get good quality legal advice before agreeing to a property settlement. We suggest you book in for a interact Consultation before you go and get legal advice.
That way we can help you to prepare for the legal advice session, help you to make sure that you are able to ask questions that will get you a good understanding of your legal situation and the costs associated with trying to get a judgement based on “your rights” The questions that you need to have answers for are:
- What is the best, worst and most likely outcome from going to court? (this will give you the negotiating range)
- What is it likely to cost? (this will give you a discretionary budget to negotiate with)
- How long is it likely to take? (this will give you an idea of the opportunity and emotional cost – how long are you prepared to be locked in conflict and make no mistake. Going to court will increase the conflict between you)
It is very, very difficult to get satisfactory answers to questions like this and yet you can’t negotiate effectively without knowing what the alternative of the court is going to cost you and what you are likely to be able to get if you did go.
There are various forms of negotiation but the type we use at Interact is Interest Based Negotiation.
Our goal is to help you both understand what the other needs (their interests) and why that is important to them.
This is important as often people who have left the family home due to family violence find it difficult to access mediation services.
You should get your property orders within two years of separation if you were in a de-facto relationship and within one year of your divorce if you were legally married.
If you can reach agreement through mediation then you can save yourself thousands or tens of thousands of dollars or more. The process of reaching agreement through mediation may take a few sessions if you have a lot of assets or a lot to sort out but it will always be less expensive than going to court or using lawyer negotiation.
Once you have an agreement you can apply for Consent Orders.
Do you need orders?
Not everyone needs Property Orders but everyone who is ending a relationship should consider what changes are needed due to your separation:
- If you want to transfer property, a business or superannuation between you then you will almost certainly need either Consent Orders or a Binding Financial Agreement.
- If you have a lot of debt or risk of further debt an agreement is a good idea to definitely separate your financials.
- You will have to change or cancel bank accounts, direct debits and various other accounts and obligations.
It can be confusing and stressful but in reality there are certain things that have to be done and that can be done in a safe, structured and step by step way.
The four steps in a family law separation are:
- Work out what you want
- Get financial support for children in place
- Work out an agreement about the care of your children
- Work out a property settlement agreement and make it legally enforceable (if you have assets to justify this)
We know how overwhelming it can appear to be, especially when you are dealing with the emotional impact of your changed circumstances and any trauma related to your time together or separation. In reality with the right help it is a step by step process that you can get through.