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Questions around legal stuff
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What does it mean when...
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When Mum or Dad talk about separating or getting a divorce...
What do they mean by separation?
When adults talk about 'separating' they are talking about living in separate homes. It means they have decided they don't want to live together any more. Some parents just stay 'separated'. Other parents may decide to get divorced.
Once two people who have been married have separated, and have been separated for at least one year, they can get divorced. This means they have decided they want to sign a document saying they are no longer married.
- Will my parents have separate houses when they separate?
Some people stay living in the same house even though they're separated. They have separate rooms and they each do their own cooking and washing and shopping. They don't live as a couple any more even though they're in the same house.
Most people who separate decide to live in completely separate houses.
Sometimes Mum will stay in the family house and Dad will find somewhere else to live, or the other way around.
When Mum/Dad is getting married to someone else...
- What happens about my real Mum/Dad?
Just because you have a step-Mum or step-Dad doesn't change anything between you and your real Mum and Dad. Your real Mum and Dad will always be your real Mum and Dad.
- Do I have to change my name?
No you don't have to change your name. If anyone wants you to change your name they have to make an application to a government department called Births, Deaths & Marriages where someone will talk to you to make sure you agree to changing your name and understand what changing your name will mean. If you don't want to change your name you can say so.
'Living with' and 'Spending time with':
When Mum and Dad talk about living with, spending time with and parenting plans...
- What does 'live with' and 'spend time with' mean?
'Live with' and 'spend time with' are the words used to describe which of your parents you mainly live with and when you spend time with your other parent.
So for instance if there is an order saying that you live with one of your parents, this will mean that you mainly live with that parent. Even though you mainly live with one of your parents, both your parents share the responsibility for you (unless this is unsafe and an order says that your parents do not have shared responsibility).
'Spending time with' is the term used to refer to the time you spend with someone important in your life other than the parent you live with. That is usually your other parent but could also include a grandparent, neighbour, uncle, aunt, niece, nephew or a friend.
- What is a parenting plan?
A Parenting Plan is a written agreement between parents about any part of your life. A parenting plan can cover things like where you will live, who you see, schooling, holidays, religious and medical matters. Parents are encouraged to come up with a plan that keeps everyone happy.
- What is a parenting order?
This is when a Court has decided how much time you will spend with each parent and for how long. Sometimes parents can't agree because they both want you all the time, so the Court will decide what happens. Sometimes people aren't always happy with what the Court decides either but they must do what the Judge or Federal Magistrate says.
- What is a Contact Handover Centre?
This is a safe place where you are able to go from one parent to the other without your parents having to deal directly with each other. So if for instance you are going to spend some time with the parent you don't normally live with, that parent can see you at the contact handover centre which is a safe, caring place where people care about your well being. The staff is experienced in caring about children and there are toys, games and other activities for you to do while you wait for your other parent to arrive. Your other parent can go there to meet you and may then take you somewhere else.
Contact Handover Centres are good for children whose parents don't get on very well and argue when they see each other. By using a Contact Handover Centre you won't have to see or hear your parents arguing or being upset.
Contact Handover Centres can also be used for what is called 'supervised contact'. Supervised contact is the time you spend with the parent you don't normally live with, but someone else has to be there as well, either because that is what your parents want or because it's what the Court has decided. If you have 'supervised contact' at a Contact Handover Centre then you will spend the whole of the time with your other parent at the Centre, where they can stay and talk to you or play with you, but there will always be other people around to make sure you're happy and safe.
When Mum or Dad talk about going to Court
 What do they mean?
If your parents are separating and talk about going to Court, they probably mean the Family Court or the Federal Magistrates' Court. These are Courts that deal with many of the things involved in separation and divorce, and help to make decisions about children, when parents can't agree. They also deal with the property - like the house and furniture - if the parents can't agree.
- Are they in trouble?
Just because your parents might be going to Court doesn't mean they're in trouble with the law. With separation and divorce, the Family Court and the Federal Magistrates' Court are there to help make a decision about things your parents can't agree on.
- Will I have to go to Court?
Children very rarely go to Court when their parents separate or divorce. In some cases it might be helpful for children to be included in a confidential session with a 'Family Consultant' in the Court.
- Can I tell the Court what I want?
Children might also meet a 'Family Consultant' on their own if the Court decides it wants a report about your family. This meeting gives children the chance to talk about their thoughts and feelings about what's happening in their family. Children won't be asked to decide or choose between their parents but they can talk about what they want and don't want to happen.
- What will the court do?
The Court is there to help families when they split up. The Judges or Federal Magistrates make decisions when parents can't agree about things to do with children and property. If a Judge or Federal Magistrate makes a decision then your parents must stick to those decisions.
- What will the court look like?
It is not likely that you will ever need to go to Court when your parents split up. The Courtroom is just a large room where the Judge or Federal Magistrate sits up high at the front and listens to what your parents' lawyers have to say (or your parents, if they don't have a lawyer). Usually the Judge or Federal Magistrate and the lawyers will wear wigs and gowns.
- How soon will we have to go to court?
It will depend on whether or not your parents can agree about things. If there are a lot of disagreements then it might take a long time - at least a year. Sometimes the Court will make what is called an interim order if it needs to decide something important very quickly.
- What is a Judge or Federal Magistrate?
A Judge or Federal Magistrate is someone who has been a lawyer for a long time. Judges or Federal Magistrates know a lot about the law and can make decisions that they think will be fair to everyone, especially children. Judges or Federal Magistrates usually make the big decisions in a trial. Sometimes decisions will also be made by a Judicial Registrar or Registrar who are also lawyers.
- What does a Judge or Federal Magistrate do?
A Judge or Federal Magistrate can make orders about who you will live with, who you see and other important things to do with you. A Judge or Federal Magistrate can also make orders about property if your parents can't agree about things to do with money.
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What sort of things does a Judge or Federal Magistrate think about before making a decision?
The main thing the Judge or Federal Magistrate will think about is what is best for you because they don't think it's good for children to have too many changes or upsets. The Judge or Federal Magistrate will think about who you have mainly been living with so far, how happy you are about that, whether you might need to change schools or move away from friends, whether there has been any violence in your family or whether you have been treated badly or neglected by one of your parents, or whether one of your parents is away from home a lot of the time because of their work. The Judge or Federal Magistrate will think about all of these things before deciding what would be best for you.
- Can a Judge or Federal Magistrate stop me seeing the parent I don't live with?
This doesn't happen very often. The Family Court says you have a right to see and know both of your parents and spend time with them. The only time a Judge or Federal Magistrate will stop you seeing one of your parents is if he or she believes you would not be safe with them. It is always important to tell someone if someone hurts you, or you don't feel safe, even if it is one of your parents.
- What is a lawyer or barrister?
A lawyer is someone who understands the laws about separation and divorce. Lawyers give advice about the law, prepare documents for Court and barristers appear in Court. He or she stands up in Court and speaks to the Judge or Federal Magistrate to help him or her decide what is best for you. Your parents don't have to have a lawyer. If they do, they will visit or write to or telephone their lawyer about what they want him or her to say before they go to Court. If your parents don't have a lawyer then they will stand up in Court and speak to the Judge or Federal Magistrate themselves.
- Will I have to talk to my parents' lawyers?
No, you will not have to talk to either of your parents' lawyers.
- Will I have my own lawyer?
Sometimes the Court will decide it's best for a separate lawyer to look out for your best interests. This usually happens if there is a lot of arguing between your parents, or if one of them says the other one has been violent or abusive, if you don't get on with one of your parents or if one or both of your parents can't look after you properly. If this happens, that lawyer will be called a Independent Children's Lawyer. The Independent Children's Lawyer will make sure that your wishes are passed on. It may be possible for you to talk to the Independent Children's Lawyer yourself if you want to.
The Independent Children's Lawyer's job is to make sure the Judge or Federal Magistrate and the Court have all the information they need to know about what's best for you.
- What is a 'Family consultant'?
A Court can also order a Family Report to be prepared by a Family Consultant. You will be able to talk to the Family consultant about your feelings about what's happening in your family.
- Will anyone else be in the room when I talk to the Family consultant?
You will talk to the family consultant on your own. The family consultant may want to talk to you with your brothers or sisters in the room as well. If you feel confused or scared about anything you can tell the family consultant.
- Will the family consultant decide what happens?
If you are seeing a family consultant for a Family Report, then he or she will write in that report what they think would be best for you. The Judge or Federal Magistrate decides what will happen after he or she has read all the information that is given to him or her.
- If I talk to the Family consultant will they tell anyone what I say?
If you are seing a Family Consultant for a Family report that the Court has asked for, then your parents will have a copy of that report as well and will know how you feel. If you are concerned about anyone knowing what you say, talk to the Family Consultant about that. The Family Consultant is on your side, and it's really impoartnt that she or he understands whatever is impoartnt to you. It may be that the Family Consultant doesn't have to report everything you say.
When Mum and Dad are talking about mediation...
- What is Family and Child Mediation or Family Dispute Resolution?
Family and Child Mediation is the name given by the law to mediation about children. It can help your parents sort out their disagreements or arguments about children or property. The law encourages parents to sort out their problems first instead of going straight to Court. If your parents go to mediation then they will meet with a Mediator who is a person trained in helping people sort out their disagreements. A mediator won't take sides with either of your parents.
Mediation is a good way of sorting out what's going to happen, with children and property. Mediation is different from going to Court because in mediation your parents reach an agreement themselves instead of having a Judge or Federal Magistrate make the decision and tell them what to do.
- Who goes to mediation?
Usually your parents or carers go to mediation.
- Can I go to mediation?
A mediator can ask your parents if they think it would be good for you to have a private talk with them. This is called child inclusive mediation. If your parents agree and if you agree, then you can talk to the mediator or a family consultant on your own and you can ask any questions or make suggestions about what you want or don't want to happen, or tell them about your feelings. You won't be asked to decide anything or to choose between your parents. The mediator will be trained in talking with children. The mediator will only tell your parents things you want them to know about, unless it is something that is dangerous to you.
- Who decides if someone has to go to mediation?
Your parents can choose to go to mediation or the Court might order them to go.
- Where will mediation happen?
Mediation can take place outside the Court, at a place specially set up for mediation, or it can happen in the Court building.
- Who else will be there?
If you go to a child inclusive mediation then it will probably just be you and a mediator or a family consultant talking together. If you have brothers or sisters you can all be in the mediation together or, if you prefer, you can go in one at a time.
- Will the mediator decide what happens?
Mediators don't make decisions. Their job is to help people make their own decisions.
- If I talk to the mediator will they tell anyone what I say?
Not unless you say it's okay. However, if the mediator thinks you might be being hurt or you are neglected or unsafe she will have to tell someone.
When Mum and Dad talk about counselling...
 What is counselling?
Counsellors are people you can talk to who are trained to help you talk about your sad, angry or hurt feelings. They can help you to understand what is happening in your family.
- Who has to go to counselling?
Anyone can go to counselling. Your parents can go to get help with their sad, hurt or angry feelings. A counsellor can also help them to understand what is happening in the family. A Court can also order your parents to go to counselling.
When Mum and Dad talk about child support...
- What is child support?
The law says that both of your parents should pay money towards caring for you if they work and earn money. If you are living mainly with one parent, then usually the other parent has to pay money to help pay for looking after you - for food, clothes and other expenses. This is called Child Support.
- Who gets child support?
Child Support money is paid to the parent who pays most of the expenses in looking after you.
- Is that money supposed to be given to me?
No. Child Support money is paid to the parent who pays most of the bills and who you mainly live with.
- Who decides how much child support has to be paid?
If your parents can't agree on what is fair, then the Child Support Agency will decide the amount to be paid. They will look at how much money both of your parents have and work out how much each of them should spend on looking after you.
When Mum and Dad talk about a restraining order....
- What is a restraining order?
 A restraining order is sometimes called an Intervention Order, Protection Order, or Apprehended Violence Order. It is an order made by a Court usually to deal with family violence. Restraining Orders are usually made to stop one parent from hurting the other parent. For instance, if one of your parents has a restraining order against the other parent, it might mean that other parent isn't allowed to come to your house or do other things that might be frightening or upsetting.
- Who makes a restraining order?
Restraining Orders are made by a Court.
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