FAQ's

A parenting plan is a written agreement that sets out parenting arrangements for children. It’s developed and agreed upon by both parents after separation or divorce.  It is important to note Parenting plans are not legally enforceable by themselves, but they can be used as the basis for a legally binding ‘consent order’ (see Consent Orders) if both parents agree.

The primary focus of these plans is the best interest of the children (see Best Interest of the Child Principle) ensuring their needs and wellbeing are prioritised.

The key elements of a parenting plan typically include:

1. Living arrangements: Where the children live and how they spend time with the other parent:-

• Regular Schedule: This outlines where the children will live on a day-to-day basis. It can vary greatly depending on the circumstances, ranging from equal time with both parents to primary residence with one parent and regular visits with the other.

• Special occasions: The plan should specify how holidays like Christmas, Easter as well as children’s and parents’ birthdays should be included. This could involve alternating years, or dividing the day, so the child spends part of it with each parent.

• Holidays: if children are school age this outlines what the arrangements are for the children on their school holidays, public holidays and student free days.

• Other Special Events: Consideration for other significant events such as weddings, family reunions, or important cultural or religious events should be included. Deciding in advance how these will be handled can prevent conflict later on.

2. Changeover: The plan should cover how transitions between homes will be managed. This includes logistics like who is responsible for transportation, pick-up and drop-off times, and locations.

3. Communication: Guidelines on how and when the children will communicate with the parent they are not currently staying with. Also how the parents will communicate about the children.

4. Healthcare and Education: Decisions regarding the children’s healthcare, education, and other important matters.

5. Dispute resolution: How parents will resolve disagreements about the plan or children’s needs.

In creating these arrangements, the overarching goal is to provide a stable and loving environment for the children, minimising their stress and allowing them to maintain strong relationships with both parents. It’s also important for the plan to be realistic and practical, taking into account each parent’s work schedule, the children’s school and activity schedules, and geographical considerations.

While divorce and separation is a challenging time for all involved, choosing FDR to negotiate your parenting plans if often less acrimonious, saving you the entanglement of expensive and time consuming legal action.

Importantly, this often means better outcomes for children involved, as children whose parents can ‘work together’ are less likely to endure the psychological and emotional effects of separation.

Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.

Not all cases are suitable for mediation.
Sub Regulation 25 is the assessment tool used by Family Dispute Resolution Practitioners to assess appropriateness for mediation. See attached link for further details.

Mediation offers many benefits over a trial by a judge, including:

• Time: ordinarily a dispute can be resolved more quickly through mediation than through a trial.
• Cost: if a dispute can be resolved through mediation, the costs of preparing and running a trial can be avoided. Additionally, after a trial the unsuccessful party may be ordered to pay the legal costs of the successful party.
• Flexibility: mediation offers parties more control over the outcome. A mediation process which is customised to your needs can be arranged with the mediator.
• Stress: mediation is less formal and less intimidating than appearing in court.
• Confidentiality: mediation is private. The judge is not informed of the contents of the mediation. It is also usually unable to be used against a party if the case goes to trial. (The Court recommends you discuss mediation confidentiality with your lawyer).
• Satisfaction: because the parties decide and agree on the outcome of their dispute they are more likely to be satisfied with the result and to comply with what has been agreed.
• Finality: settlement agreements can usually only be modified with the agreement of all parties.

The parties are in ultimate control of any decision to resolve their dispute. It is essential that people attend the mediation with sufficient knowledge of the relevant issues in dispute and the authority to make decisions about how it might settle after the mediation. If attending on behalf of an organisation the Court requires the attendee be an authorised officer who is able to make a decision about how the dispute might be settled and to enter into an agreement on behalf of the organisation.

You are more than welcome to bring your solicitor to mediation.

You can improve the quality of your mediation by considering:

• what issues are in dispute, including the facts and sources of conflict
• what is important to you in any resolution of your dispute – the interests that you wish to preserve or pursue may be different to an outcome sought through a trial
• how best to communicate this information, both to the mediator and the other party
• what you would say at the start of the mediation, to assist in resolving the dispute
• what the other party’s aspirations might be and how these might be accommodated in any offer of settlement
• possible contents of an offer and methods of communication
• what costs have already been incurred, are likely to be incurred and what part of these might be recovered
• the possible outcomes if the matter were to proceed to a trial, including the dollar value of any damages claimed and any limits on the Court to award these

Before commencing mediation the mediator will consider the best process for mediating your dispute, taking into account suggestions from all parties where possible.

The mediation will commence with an explanation of the process, followed by a discussion about the background of the matter and issues in dispute.

The mediation itself is flexible and can be tailored to the circumstances. Mediators may assist negotiations by asking questions, encouraging open discussion, offering different perspectives and expressing issues in alternative ways. Parties may be encouraged to identify and test the consequences of potential solutions. It is common for the mediator to meet with the parties jointly and separately and further mediation sessions can be scheduled if necessary.

The case may be settled:

• in full
• in part or
• parties may not be able to reach agreement.

If agreement is reached about all or part of the dispute, the details of that agreement will usually be recorded and signed by all parties before the end of mediation.

If the dispute is settled in full the mediator will notify the judge that the matter has settled. The mediator will not provide the judge with any details of the mediation discussions or the terms of any agreement the parties reached without the permission of the parties. Once the agreement is finalised the parties will usually formally notify the Court that the case is not going to proceed and the case will be closed.

If the matter is not fully settled there may be discussion about what needs to be done to prepare for trial and the file will return to the judge. The mediator will notify the judge of the outcome but not the content of the mediation. Even when a matter does not settle clarification of the issues often occurs.

Mediating a dispute does not mean there will be a delay in it being heard by a judge.

Sometimes the judge will order that if the matter does not resolve at mediation, then the Judicial Registrar may conduct a case management conference (‘CMC’). A CMC is a hearing at which the parties and the Judicial Registrar discuss how the matter can be most efficiently prepared for final hearing, amongst other things. Orders may be made by the Judicial Registrar at a CMC (but not at mediation). Unlike mediation, CMCs are conducted on an open basis, as if the parties were in Court. The mediation will be formally terminated before any CMC begins.

FDR is a process in which a family dispute resolution practitioner (FDRP), independent of the parties, helps people to resolve some or all of their disputes arising from separation or divorce (see Part II, Division 3 of the Family Law Act 1975 (Cth) (‘Family Law Act’)). FDRPs are trained in assisting people to resolve disputes and FDRP’s external to the Court are accredited by the Commonwealth Attorney-General’s office.  FDRPs cannot give legal advice or impose a decision.

Persons who have a parenting dispute about matters that may be dealt with by an order under Part VII of the Family Law Act, must make a genuine effort to resolve that dispute by family dispute resolution before filing an application for a Part VII order to the Court (see s. 60I(9) for exceptions to this requirement).

Section 60(i) Certificates are issued for children’s matters only and are a requirement in the Family Law Act 1975 . They are only issued if Mediation has not been successful and therefore allowing your matter to proceed to court if you wish. You can not make a court application regarding who the children live with and how they spend time with the other parent without a 60(i) certificate.

Please note that Section 60(i) Certificates are only valid for 12 months from your last attendance.