Many (overpaid) lawyers will tell you that when mediation fails, the only way you can get good co-parenting happening is through applications to the court.
The problem with this suggestion is two fold.
Firstly, it assumes that you have the funds to pay the said overpriced lawyer, at hourly rates that tend to start at $300 per hour, for the completion of initiating applications, affidavits, and notice of risk forms. All these are mandatory if you want to go to court. Affidavits in particular can be very time consuming documents to draft as they are in effect your evidence and have to be pinpoint perfect for the court. We regularly hear from people who have had to pay upwards of $10,000 for the privilege of getting this done. And sometimes that fee doesn’t even include a quick appearance for you at court!
Secondly, the assumption that going to court will get things happening is pretty much bulldust.
You want justice? Well you might like to think about this. Going to court is a lengthy process and nothing happens quickly because you are in essence handing over the decisions relating to parenting to the courts. Even worse, you are doing this in a “battleground” atmosphere.
Good luck with getting anything done with speed in that environment.
And with the courts this “process” can drag on for years. Yes that’s right years and years…so tell me where is the parenting outcome that is in the best interests of a child if it takes 3 years to get it?
At court you will have your mention hearing which you might have to wait 3 months for, then months later you will have a directions hearing and months later (if you still can’t work anything out by consent) an interim hearing and on and on and on until you will eventually have (with horns locked) a final hearing.
On top of this you will also have on average no change left from $50,000-$100,000.
Gotta love that justice eh?
Why does early mediation fail?
Bringing two people together while they are still unhappy with each other is fraught with difficulty.
Suspicion is rampant and trust is minimal at best. So you sit down together and after one or two sessions are meant to work out parenting and in many cases property divisions? Yer right.
There are more 60i certificates (the piece of paper you get when mediation fails so you can go to court) being produced these days than there are 5 cent pieces in circulation. And both of them are pretty useless!
Now I don’t want to blab on about the bad stuff but rather give you today an idea about how to get a parenting plan in difficult times started. Often when there is one parent who ain’t interested in mediation and ‘gung ho’ about going to court, you have to appeal to their common sense AND hip pocket. What is most important is any overture you make to a difficult or suspicious parent is that you ensure they play an equal part in coming to that agreement.
I often write to parents about getting them involved in putting together parenting plans and I want to share with you a recent letter that encourages this. The names have been removed for confidentiality but it involves a separated couple with one child who has just started school.
Here’s the opening gambit from me…
RE: Without prejudice offer towards an informal parenting plan
My name is Mark Bradbury, I am a family lawyer and founder of Australia’s largest family law website The Legal Eagle. [ www.TheLegalEagle.com.au ]
For the last 7 years, my work with The Legal Eagle has focused on helping parents find low cost solutions to any potential parenting problems, and where necessary, supporting people who are self representing and need to go to court to get things sorted.
Recently, [x] has spoken to me to seek help with organising a parenting plan so that both of you can avoid the expensive and time consuming process of having your parenting issues dealt with by the court.
You may have read how mums and dads end up spending 10s of thousands of dollars and up to 2 years going through the court process to basically get nowhere.
I don’t want this to be the case for you and [x].
I want to make it clear that I am not retained as X’s lawyer. I am simply here to help get you both a parenting agreement that is reasonable and most importantly in the best interests of your daughter.
[x] tells me that you have put on the table for discussion a possible 50/50 time arrangement regarding parenting. Many parents wrongly believe that under the law they have a right to spend half of all time each week or fortnight with their children. However this is not how the Family Law Act and the courts see good coparenting.
What the Family Law Act in Section 60CC (2)(a) states is that when it comes to parenting:
The primary considerations are:
And here the word “meaningful” doesn’t translate to 50/50. I know it’s something you have thought about but in my experience courts tend to be more interested in not changing the primary carer role once a parent (in this case [x]) has been successfully doing that for a number of years and the child is in a settled routine, particularly when it comes to school weeks.
If you can put aside the idea of 50/50, [x] is prepared to give you more time during the week.
On this, she wanted you to know that she thinks you are a really good dad and is happy to give ground and allow you to enjoy extra time with [X].
[x] is happy to offer you
[here you talk about the offer from the parent and hopefully that offer gives a little ground].
As you both share the school holiday time, I would propose you both have in your agreement that you each take half of the gazetted school holidays with one parent having the first half in odd number years and the other taking first half in even numbered years.
Negotiating is about giving ground and I hope you will appreciate the gestures from [x].
If you have any feedback or suggestions let me know and we can keeping working on this until we have a consensus.
As [x] gets older, you will both find that she starts to have her own voice about parenting and I can only say that if you and [x] are working well as a team on coparenting it will be much easier for [x].
[x], I would really appreciate it if you could be involved in getting this agreement finalised so that you both have something in place for the beginning of the school year in 2020.
Thank you so much for your time and please send your feedback to me directly when you have a moment.
BA LLB (Hons) GDLP
The Legal Eagle.com.au
Each letter I do like this is tailor made. There is no magic template because I am reaching out to a very important person in the other parent and trying to convince them of the value of having an informal but written up parenting agreement.
And even though these agreements are not binding, most mums and dads who sign up for them undertake their responsibilities and adhere to them. And where there are moment of conflict over the years with an agreement there is always a clause in it allowing for mum and dad to work things out before so court is always avoided. And having someone like me in the background is good for both parties if simple (and neutral) guidance is needed.
Let’s face it anything is better than being bankrupted by the family court!
If you need help with your family law matter please get in touch.
The Legal Eagle is run by experienced lawyers but we do not charge high lawyer rates.
You can make a free 15 minute short appointment to find out more or book a proper appointment by visiting this LINK