Some Frequently asked Questions from new single mothers
I can't afford a lawyer, what are my options?
It is always best to get legal advice when separating regardless of your relationship. If you can afford it, even a one hour chat can give you all the information you need as to what you are entitled to. It is also worth ringing around, as many lawyers give great advice over the phone without even engaging them.
If you are in a situation where your ex is taking you to court and you can’t afford a lawyer, you may find a lawyer willing to help you pro bono, or you may be able to get legal advice from one of the places suggested in the HELP Resources page, You may also be eligible for legal aid. Worst case scenario, you may have to represent yourself in court. Don’t despair, I have personally seen Judges be quite understanding and helpful to those representing themselves. The other advantage is that the Judge will hear YOUR voice, and YOUR delivery, and I personally believe that this can be an advantage.
There is some great information on this page that will help you if you are going to represent yourself, including advice on how to prepare an affidavit.
My child's father and I have just split up, do we have to go to court?
No. Hopefully you have a great communicative relationship and can work things out among each other. Unfortunately, the sad reality is that this may be the intention when deciding on going separate ways, but it doesn’t always end up like this. If your ex starts making comments about custody arrangements or financial matters that you thought were resolved or agreed upon, it’s probably best to seek legal advice. Regardless, it’s probably best to get legal advice so that when you do have amicable discussions about it, and try to work it out for yourselves, you know your rights, and what you are entitled to.
If you cannot work things out amicably, it is a good idea to get legal advice and start mediation. The mediator will have a chat with you, then with your ex separately, and then with both of you together. This is where you try to come to agreements on matters with your child, and finances. In any case, you must undertake mediation, or attempt to undertake mediation before things progress to the court. Even then, your lawyers may have discussions and try to work out an agreement for you without going to court. This is definitely the easier (and cheaper) option. In some cases, one party may refuse mediation. In that case, the other party is issued with a certificate which basically states that they have attempted mediation, and the other party wasn’t interested. From here, going through lawyers or the court system may be your only option. Keep in mind that depending on complexity, things can take years to resolve. At the time of writing (June 2016), there is such a back log that some people have a two year wait for a hearing.
My husband/partner and I have decided to separate. How can we tell our child, and how can we support them through this difficult time?
This is by far one of the hardest things you will have to do. I was 8 when my mum told me she and my dad were separating. I still remember it so clearly; the day my world, as I knew it, came crashing down. For your child, this can be a huge period of grief and confusion, and they may be really scared of the unknown; of what will happen to them, and their lives. Your child will most likely be angry and sad. It may be a good idea to speak to a child psychologist for advice on how best to break this news to a child. You can find some details on the Resources page. There are some good books and articles you can read in relation to this too. Here is one expert opinion on how best to support your child through this transition. Some tips that I would suggest are listed below.
- Reassure your child that you and their father love them more than anything.
- Reassure them that the break up is in no way their fault.
- Tell them that life will be a bit challenging for everyone at first, but over time things will get better and they will have two parents who are much happier.
- Don’t tell your child when you are feeling very emotional. I think it’s best to stay strong so they don’t get potentially further upset or scared.
- Something to cheer them up might be letting them know that going forward, they will have two of everything: two houses, two rooms, two sets of toys, and so on.
- Get some children picture books on separation and divorce.
- Ask them if they have any questions.
- Don’t break the news to them right before bed time; on a weekend is best. Plan something really fun for the rest of the day just in case they need the distraction. It will cheer them up and make them feel special.
- Be aware that they may not understand the repercussions right away, it will take time to sink in.
- Don’t give them false hope that you may get back together with their dad.
- Don’t blame your ex partner and say it was their fault.
- If possible, try to tell your child with their dad, together.
- Be mindful that your child may be more clingy or need lots more cuddles and attention afterwards.
- Try to maintain your child’s routine as much as possible afterwards.
- Don’t ask your child to pick a side.
- Tell your child that you and their dad will still be friends.
- Let your child’s carers or teachers know what has happened so they are on the same page.
- Down the track, and depending on your child’s age, you could get a calendar and stick pictures on certain days that they are with mum and dad as a clear visual for them as to what days they are with whom.
Here are some more links with good advice:
My ex won't sign a passport application form for my child. What can I do?
Sadly this is an extremely common consequence of separation. Many fathers refuse to sign a passport application form for their children. There are many reasons why they may do this. They may be worried that you will leave the country with your children and not return, or they may be doing it for control. After you have exhausted all options (this means trying to talk to them and understand why they are worried, trying to persuade them, and mediation), there are only two things you can do:
- The first is to submit a B9 form. This is an Application for an Australian travel document: Child without full parental consent or Australian court order permitting issue of a travel document. This form must be submitted alongside a regular application form for a child. It is important to consider that these passport applications without full consent take longer to process (generally six to eight weeks) so normal turnaround times do not apply, and there is no guarantee that a child passport application without full consent will be approved. You should not make firm travel bookings until you know whether a passport will be issued to your child. In this form you need to state such things as if you have tried to contact the other parent, if the child is subject to any court orders, child support arrangements, and outline contact between your child and the other parent. You must also provide further information and attach evidence as is defined in subsection 11(2) of the Australian Passports Act 2005 and section 10 of the Australian Passports Determination 2015. It should be noted that unless there are extreme circumstances such as your ex has passed away, is presumed missing or dead, is not contactable by you and the Minister, or is medically incapable of providing consent, it is unlikely that this application will be granted.
- If submitting a B9 form is not successful, the next step is to get a Court Order for a passport. From personal experience, this is usually a long process and can take 1- 2 years, in addition to being very expensive. You need to get legal advice. The good news is, that unless your ex has an extremely good reason why your child should not have a passport, the Court will usually agree that it is a human right for your child to have a passport.
What is the Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.
The Hague Convention also deals with issues of international child access. When a parent or guardian lives in a different country to the home country of their child, it may be hard to work out access to them.
The Australian Central Authority in the Attorney-General’s Department is responsible for administering the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The convention is a multilateral treaty in force between Australia and a number of other countries. It provides a lawful procedure for seeking the return of abducted children to their home country. It also provides assistance to parents to obtain contact or access to children overseas.
You can contact the Australian Central Authority if you have any general questions about the Hague Convention, the process for making an application to have a child returned to Australia, access application or court order registration application. To see a full list of counties in the Hague Convention that Australia is in force with click here.
If your child leaves the country with your ex and is not returned, the Attorney-General’s Department can only assist you if your child is in a Hague Convention country, and if the Hague Convention is in force between Australia and that country.
I am getting consent/court orders drawn up. What are some things I should consider to include?
If you don’t have a good co-parenting relationship with your ex partner, it may be a good idea to make the clauses in your orders very specific so that there is less potential for arguments and disagreements. If everything is clearly drawn out from the start, it minimises the risk of potential future drama. Some things you may want to consider for inclusion are:
- What days/nights you and your ex will each have your children
- Who is responsible for drop offs/pick ups
- Who will have the kids during the school holidays, and if they need care, who will pay for it
- Who will the kids spend their birthdays with
- Who will the children spend Easter, Christmas, Mother’s Day, Father’s Day, or any other religious or otherwise significant days with
- Who will pay for the birthday parties
- Who will buy presents for their friends birthday parties
- Who will pay for sporting or other co-curricular activities your children do, and who will take them there
- Who will the children spend time with on your birthday, and on their father’s birthday
- Education decisions and who will pay for certain things
- How will you work out potential overseas holidays
- How and at what frequency you will communicate with each other
- How and at what frequency your children will communicate with you when you are not with them
- Arrangements to see grandparents, and other immediate and extended family
- For one or both parties to attend a parenting after separation course or anger management course
- For one or both parties to attend counselling or undertake a mental health assessment
- Can you both attend day care or schooling events, even if they are not in your allocated time with the kids
- For one or both parties to get drug tested on a regular basis in order for visitation to continue
- Notification to each other regarding future relationships and/or children that will affect your child
- Notification of each other’s contact details, especially home address
- Deadlines for decisions or notifications to each other regarding such things as taking holidays or school holiday arrangements
- Notification of medical issues, and who will pay for treatments etc.
- What sort of insurances your child will have (e.g. health insurance), and who will pay for it
- No derogatory comments about the other parent in front of the child
- If you have more than one child, will you each have some one on one time with each child
My ex and I don't have a good relationship. We had an argument when he came to collect our child, and now he hasn't brought our child back to me at the allocated time. What should I do?
This is an extremely stressful situation. Your mind is no doubt racing with a zillion thoughts. Please note that this is what I, personally, would do in this situation. It is by no means legal advice. The first thing I would do is call my ex and find out where they are. If he doesn’t answer, I would leave a message, then hang up and try again. I would do this again some time later. If he still does not answer, I would leave a message saying I will call the police at X time if he doesn’t call back. I would also state this in a text message. If that time comes, and there is still no contact from him, I would call the Police and inform them. This is particularly important if there are Court Orders in place. I would then document everything, including listing exact times that I called. The Police will help you from here. You will probably also need to call your lawyer.
For peace of mind, it is worth investing in a GPS tracking device. These can be bought in the form of a watch, or small discs that can be inserted into shoes, bags or clothing. This is important if you have a bad relationship with your ex, and are worried about the whereabouts of your children.
What is the Family Law Watchlist?
The Australian Federal Police maintains the Family Law Watchlist for family law matters. The system is designed to alert police to the movement of children. It identifies whether children are leaving Australia, and may be in place in circumstances where:
- the Court has issued a parenting order limiting or preventing the child’s overseas travel;
- the Court has issued an injunction limiting or preventing the child’s overseas travel;
- the child is the subject of a parenting order application currently before the Court that may limit or prevent overseas travel;
- the child is the subject of an application for an order to place the child on the Family Law Watchlist; or
- the child is the subject of a parenting order or injunction under appeal.
To place a child on the Family Law Watchlist, you must first complete a Family Law Watchlist Request Form. In addition, you will need to have:
- a Court order (made under s34 or s68B), or a parenting order that limits or prevents the child’s overseas travel and which also requests the AFP to place the child on the Family Law Watchlist; or
- filed an application with the Court for a Court order (to be made under s34 or s68B) or a parenting order that limits or prevents the child’s overseas travel, and which also requests the AFP to place the child on the Family Law Watchlist; or
- filed an appeal with the Court against an order of the Court relating to the child that limits or prevents the child’s overseas travel, that had requested the AFP to place the child on the Family Law Watchlist.
To establish whether your child is on the Family Law Watchlist, you or your lawyer will need to complete a Family Law Watchlist Enquiry Form.
If you wish to remove your child from the Family Law Watchlist, it is recommended that you seek legal advice.
How a child is removed from the Family Law Watchlist will depend on how the child was first placed on the Watchlist. Generally, if the child is placed on the Family Law Watchlist by injunction, a further Court order removing the child from the Watchlist may be required.
For more information on the Family Law Watchlist click here.
What is a recovery order?
- parent of the child;
- person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
- person who has parental responsibility for the child.
A Recovery Order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered.
A Recovery Order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child.
You can apply for a Recovery Order if you are a:
- person who the child lives with, spends time with or communicates with as stated in a parenting order;
- person who has parental responsibility for the child in a parenting order such as a grandparent of the child; or
- person concerned with the care, welfare and development of the child.
For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.
If you wish to apply for a Recovery Order, it is recommended that you seek legal advice. An application for a Recovery Order should be filed in the Federal Circuit Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order.
What is the difference between the Family Court and the Federal Circuit Court of Australia?
The Family Court is a superior court of record established by Parliament in 1975 under Chapter 3 of the Constitution and deals with more complex matters. These may include:
- Parenting cases including those that involve a child welfare agency and/or allegations of sexual abuse or serious physical abuse of a child (Magellan cases), family violence and/or mental health issues with other complexities, multiple parties, complex cases where orders sought having the effect of preventing a parent from communicating with or spending time with a child, multiple expert witnesses, complex questions of law and/or special jurisdictional issues, international child abduction under the Hague Convention, special medical procedures and international relocation.
- Financial cases that involve multiple parties, valuation of complex interests in trusts or corporate structures, including minority interests, multiple expert witnesses, complex questions of law and/or jurisdictional issues (including accrued jurisdiction) or complex issues concerning superannuation (such as complex valuations of defined benefit superannuation schemes).
All other applications should be filed in the Federal Circuit Court.
The Federal Circuit Court deals with less complex matters that are likely to be decided quickly. You may prefer to seek legal advice before choosing in which court to file your application.
An Application for Consent Orders must be filed in the Family Court. In the Federal Circuit Court if you reach an agreement after filing an application you may file a consent order for consideration by the Circuit Court judge.
Divorce and child support applications should be filed in the Federal Circuit Court.
I'm about to start mediation with my ex regarding a parenting plan, what are some things I should consider?
Mediation, or family dispute resolution, allows couples or families to have difficult conversations in a safe, calm and controlled environment. It enables separated couples to discuss and then make their own decisions about how they would like to resolve their post separation issues whether it be in relation to their children or in reaching an agreement in regards to property & financial settlement. It is a future focussed, impartial and non-judgmental process.
The thought of undertaking mediation with your ex partner may be daunting. Especially when it comes to working out a parenting plan. The first thing to remember is that this is about what’s best for your child or children, not for you. It’s also not about getting back at your ex. You need to consider the age of your child or children, and think about what will work best. It is a good idea to get some advice from a child psychologist if you are not sure what is suitable for their age. Things you need to think about before you go are:
- Ideally, how many nights will your child or children spend with you a fortnight, and how many with their father?
- What will happen on your child’s or children’s birthday?
- What will happen at Easter, Christmas, Mother’s Day, Father’s Day, or any other religious or otherwise significant days?
- Who will pay for the birthday parties?
- Who will buy presents for their friends’ birthday parties?
- How will you decide what sport or other co-curricular activities your child or children do, who will pay for them, and who will take them?
- Who will your children be with on school holidays, and if they need care, who will pay for it?
- Is it important to you that your child or children are with you on YOUR birthday?
- Do you agree on schooling? What would you prefer for your child?
- Who will leave work to pick up your child from school, if they are sick?
- How do both sets of grandparents and other immediate family fit in, and when will they see your child?
- How will you work out potential overseas holidays?
- If you have more than one child, do you each want some one on one time with each child?
Other tips include:
- If you are afraid of your ex or your ex does not live in the same city as you, you can do mediation over the telephone;
- Don’t feel pressured to agree to anything on the spot; you can go home and think about it, if you need to;
- If you feel intimidated by your ex, you can opt to be in different rooms, and the mediator will go back and forth so you don’t need to be in the same room as them;
- Pick your battles: be willing to compromise on some things, and stick to your guns when it comes to what’s best for the kids, or what’s REALLY important to you;
- Ask for a break if it gets too much;
- Ask for a follow up session if you need time to think about some things.