Process – Parenting Arrangements

STAGE 1: PRE-ACTION PROCEDURES

Many separated parents make arrangements regarding their children between themselves without the intervention of a third party. However there are situations where finalising the parenting arrangements in a formal manner (parenting plan or court order) will be beneficial to the parties involved.

In situations where parents are considering applying to the court for parenting orders there are steps (pre-action procedures) required before a parent can start court proceedings. The main steps involved are:

Step 1: Comply with the requirements of Compulsory Family Dispute Resolution

The parties are required to participate in compulsory family dispute resolution (“FDR”).

There are a few exceptions to this requirement including cases:

  • Involving urgency

  • Involving allegations of child abuse or risk of abuse

  • Involving allegations of family violence or risk of family violence

  • Where there is a genuinely intractable dispute (for example, where one person refuses to negotiate) or

  • Where a person would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case (for example, where there is a genuine concern that the other person will attempt to defeat your application if he/she has this prior knowledge).

Step 2: Enter into a parenting plan or apply for consent orders

If an agreement is reached, you and the other party (usually your former partner) may enter into a parenting plan or apply to court for consent orders.

If the family dispute resolution process (see step 1) was unsuccessful in resolving the dispute, bear in mind that there are other dispute resolution processes such as family counseling, negotiation, and conciliation which you and the other potential parties could participate in, to assist all parties resolve the dispute.

You can participate in many of these dispute resolution processes at any time and in all of them, before commencing court action.

Step 3: If your case is not resolved give written notice of issues and future intentions

A person considering applying to a court must give the other person/s written notice of the intention to start a court case (called a notice of claim), setting out:

  • The issues in dispute

  • The orders to be sought if a case is started

  • A genuine offer to resolve the issues, and

  • A nominated time (at least 14 days after the date of the letter) within which the other person must reply.

Step 4: Reply to the notice of claim

If you receive this notice of claim, you must, within the nominated time, reply to it in writing stating whether the offer is accepted. If an agreement is reached, refer back to Step 2.

If you do not accept the offer, you must set out in a letter:

  • The issues in dispute

  • The orders you will seek if a case is started

  • A genuine counter offer to resolve the issues, and

  • A nominated time (at least 14 days after the date of the letter) within which the initiating claimant must reply.

If you do not respond, the initiating party’s obligation to follow the pre-action procedure ends.

Step 5: If no agreement is reached/taking court action

Where an agreement is not reached after reasonable attempts to resolve it by correspondence, other appropriate action may be taken to resolve the dispute, including filing an application in a court.

STAGE 2: COMMENCING COURT PROCEEDINGS

Once attempts to finalise parenting arrangement without proceeding to court have been exhausted, the main steps to commencing court proceedings are:

  • Court documents: Prepare the necessary court documents. The documents required will depend on the court you are in and the types of orders you are seeking.
  • File and serve: Your court documents will have to be filed in the relevant court registry and personally served on your former partner. At the time of filing your documents, the court will issue you with a court date and time.
  • Response documents: Your former partner will be required to prepare, file, and serve response documents to your application.
  • Court events: At the first court date, most parties will seek procedural orders. This often includes orders about attending a family report, mediation and the next court date. In some situations there may be an interim hearing at the first court date. This could be for urgent and specific issues such as recovery of a child, medical treatments or some other child related matters that cannot wait until the final hearing.
  • Disclosure: Each party to the proceedings has a duty to provide full and frank disclosure. This duty is an ongoing duty and starts before the commencement of court proceedings and continues up until settlement or trial. For parenting cases disclosure may include medical reports, school reports and any information or documents relevant to the proceedings.
  • Possible mediation: After the first court date and it is often beneficial to attend mediation to attempt to resolve the matter.
  • Arbitration: Arbitration is currently not available for children matters.
  • Further court mention: The next court date will likely be to have the matter adjourned to a trial callover where trial directions are made. These are essentially orders regarding preparation for the trial and may include the following:
    • Any outstanding issues
    • Having each party file their trial documents which they intend to rely on and
    • Having each party file their case outline including the orders they are asking for.
  • Trial/hearing: the final hearing is when each party will present their case, be cross-examined, and at the end of the hearing a judge will determine the case.