Donate Child Support Calculator
Skip navigation

Agreement in initiating application

Hello.

I went to Legal Aid to have some help to fill in my initiating application and write my affidavit.

They told me that I could not give any details about the agreement that we had with my ex-partner regarding our child during the mediation as it is confidential. However, in the initiating application, it says to mention any agreements or parenting plans that we had (see part F).

The agreementwas written on a white board and at the end of the session they printed the whiteboard with the details of the agreement. It is not signed so it is not legal… Should I add it in my initiating application?
The advice from Legal Aid seems sound.

Did the mediation result in an agreed outcome or do the white board notations only represent notes?

Agreements are often sealed by the court.

Extracting the points from the whiteboard and incorporating them into your affidavit is of value. Especially those issues wherein both sides are in agreement.

Using the notations as a basis of setting out a Minutes of Order for trial purposes is worth considering.

It is the Evidence Act and the admissability of evidence that governs what can be included in you affidavit. There are exclusions that are allowed in Family Court parenting matters. If your self representing expectations may not be as acute.

What is of importance is distinguishing what is at issue and that which is agreed. The courts seek to resolve the former contentious issues then based upon those established facts determine what is in child(ren)'s best interests.

Your affidavit in support of an application needs to contain the facts you will rely on to sustain your arguments for the orders you seek in the best interests (not your's) of the children.

Try to apply yourself in a non-emotive mode!

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
It is written "Interim parenting plan" with few different stages but it is not signed. Do you think I should attached the document? Thanks for your help
You do not appear to appreciate the advice that you received from Legal Aid. Are you hoping to read something that confirms your beliefs or wants?

Use the "Interim parenting plan" notes to manifest part of your affidavit.

In a cross application - the alternative orders you are seeking (if you are respondent) - you could write into orders those elements of the "interim parenting plan" that are to an extent agreed to. Also add those orders what you are seeking. Be minful that they need to be praticable.

The expectation might be that the agreed parts of the plan would be approved by a court (unless there is achange of mind).
So then you focus on those orders you want. Develope your arguments that support those orders based upon the known facts. These facts need to be in your affidavit (Evidence in Chief).

In effect you are to incorporate into evidence that which might otherwise be excluded.

Try not to see a single document or fact as being pivotal. Should your document be deemed "non-admissable" then you no longer have a case.

Read some similar judgements. These can be read on the Family Court's web site:

http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/judgments/newjudgments/  

First instance judgements are in effect hearings (trials) whilst Full Court judgements are appeals (reviews) of First Instance hearings.

The court is looking for you to put your case in terms of the specific sections of Family Law Act. These are mentioned in judgements.

When you read these judgements allow yourself to evolve a sense as to how the judge/magistrate reasons. The language of the court is couched in terms which are not always be familiar. Attending the Family Court can add to your education of what lies ahead if you are unable to come to a consensus (Consent Orders).

The advantages of resolving the matter at an early stage are substantial as otherwise the acrimony percolates unfortunately down to the children.

Its amazing that when both sides act in the best interests of the children that issues are extinguished. Leaving it to the court puts it all in the hands of someone more remote from the children. The court prefers that you both consent and exhibit parental capacities.

Joining the SRL forum on this site would allow you reveal more information without identifying yourself. Posting in the SRL forum is unseen by those without access.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha

Agreements which don't last the day aren't "Agreements"

Courts dealing with family law matters don't take a great deal of interest in past agreements that fail to develop into practical arrangements.

The logic used by the courts is quite simple - In children's matters the court is required to make orders consistent with the best interests of the children as defined by the family Law Act. If the issue is property, the court is required to make orders which are fair and equitable as defined by the family Law Act. The fact that the matter is before a Judge or Magistrate for a decision is in itself absolute proof the 2 parties could not come to a workable agreement. Whether a party has been unreasonable or obstinate in mediation is not relevant to the court.

Back to the agreement in question, if it never went any further than a print out from the white board, the court won't be interested. On the other hand, if the agreement became a practice for a period of time it will interest the court, but only if evidence is provided showing it is in the best interests of the children.

In simple terms, if you think the regime contained in the expired agreement is the best outcome, then you should be focusing on presenting a case to support that. That temporary agreement was reached then abandoned will not influence the court, so don't waste yours or the courts time by trying to make it an issue.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
1 guest and 0 members have just viewed this.

Recent Tweets