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Family and Separation

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Posted by Madhu Warnakulasuriya on : Friday, November 01, 2013

When you separate, you and your former partner need to make important decisions about the future care of your children and how to divide your property, money and belongings.

There are services in the community that can help:

  • you and your partner work through any problems in your relationship
  • you and your children adjust to separation or divorce
  • you and your former partner reach an agreement, and
  • you and your family adjust to and comply with court orders.

If you are considering separation or have separated, you should seek legal advice. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement with your former partner without going to court.

If you have any concerns about your safety while attending court, you can call 1300 352 000 before your court appointment or hearing. By law, people must inform the Court if there is an existing or pending family violence order involving themselves or their children.

If you are thinking to sort out your family problems without going to court, there are some non-court based family services

FAMILY COUNSELLING - a process in which a family counsellor helps people deal with personal and interpersonal issues relating to families, relationships, marriage, separation and divorce.

FAMILY DISPUTE RESOLUTION - a process in which a family dispute resolution practitioner, independent of all the parties, helps people resolve some or all of their disputes with each other during and after separation and divorce.

ARBITRATION - a process in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

Generally, what is said during family counselling and family dispute resolution is confidential and cannot be used in court later.

You can make an agreement with your former partner.

Reaching an agreement with your former partner can offer many advantages, such as:

  • you make your own decisions
  • you greatly reduce the financial and emotional costs of legal proceedings
  • your continuing relationship as parents, if you have children, is likely to work better
  • you are more able to move forward and make a new life for yourself, and
  • you may improve communication with your former partner and be better able to resolve disputes in the future.

Parenting plans
A parenting plan is a written agreement that sets out parenting arrangements for children. It is worked out and agreed jointly, you and your former partner do not need to go to court. Unless the Court orders otherwise, you and your former partner can agree to change a parenting order.

Consent orders
A consent order is a written agreement that is approved by the Court. A consent order can cover parenting arrangements for children as well as financial arrangements such as property and spouse or de facto maintenance. Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing.

Going to court

If you cannot reach an agreement, you may consider applying to the Court for orders.

Compulsory Family Dispute Resolution
Before you apply to the Court for a parenting order, including those seeking changes to an existing parenting order, you need to attend Family Dispute Resolution (FDR) and obtain a certificate from a registered FDR provider.

There are some exceptions to this requirement, such as cases involving family violence, child abuse, or urgency.

Pre-action procedures - Family Court
In the Family Court, parties intending to apply for parenting and/or financial orders must follow pre-action procedures, which include attending dispute resolution, before filing an application.

Family Consultants
Family consultants are psychologists or social workers who specialise in child and family issues after separation and divorce.

Family consultants can help you and the Court in many ways. They can:

  • help you and the other party resolve your dispute
  • assist and advise the Court and give evidence about your case
  • write and provide a report to the Court about your family, and
  • advise the Court about the services provided to families by government, community and other agencies.

Compliance with court orders.

When an order is made each person bound by the order must follow it. If the order is not complied with, you may file a court application. The Court can make an order to enforce an existing order. The Court may also make an order that discharges, varies or suspends the order or renews some or all of an earlier order, or adjourn the case to allow a person to apply for a further order that alters the existing order. If the Court finds a person has breached (contravened) an order, it may impose a range of penalties.

MADHU WARNAKULASURIYA LL.B

ATTORNEY AT LAW SRI LANKA

SOLICITOR AND BARRISTER AUSTRALIA

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