When a relationship breaks down, many discussions occur, and well-thought-out arrangements must be made for now and the future. When a person comes to see us about their family law concerns, we ask them a number of questions, including whether they are safe, what are the arrangements for the children and what are the arrangements for finances. We can then advise about what to do now and in the longer term.
Most people are able to sort out long-term parenting and other arrangements for their children and financial matters, including property settlement. The first part of working towards sorting the issues is to seek advice about the law, processes, types of dispute resolution and how any agreement can be made formal. Having said that, this sorting is not easy due to the emotions after a separation and it does take time and money, but resolving issues is far better for all concerned than fighting it out in court.
Over two-thirds of all cases filed in the Federal Circuit and Family Court of Australia (FCFCA) are applications for consent orders. This means that the couple has reached an agreement about parenting arrangements and/or property settlement, and they are asking the court to make orders that they both agree should be made. In these cases, the parties sign the consent orders and the related application, which lawyers draft and will be lodged in the court. The consent orders are then reviewed by the court and will be made into orders if the court forms the opinion that the parenting orders are in the best interests of the children and that the property settlement is just and equitable in the circumstances of the case.
If so many cases end in agreement, how can people who are no longer a couple work towards reaching an agreement?
There are a number of paths that parties can take to in an effort to reach an agreement about their children and/or property settlement. Before we discuss those paths, it is important to understand the core principles which underpin how the Australian family courts work and how lawyers who do family law are to work.
The FCFCA has 10 core principles that guide its operation and are set out in the court’s Central Practice Direction. That Practice Direction notes that the court’s management system aims to facilitate the just resolution of the dispute according to law and as quickly, inexpensively, and efficiently as possible. The court encourages the use of dispute resolution procedures. The parties are expected to make a genuine attempt to resolve their dispute, including complying with the pre-action procedures. After the commencement of court action, parties are expected to be proactive in identifying the appropriate time and way they can participate in dispute resolution and be prepared to make and consider reasonable offers of settlement at any stage of the proceedings.
Returning to the paths or methods which parties can take to try to reach an agreement. The various methods include:
- Negotiation between parties
Here the parties negotiate directly with each other, prepare documents such as spreadsheets, and have respectful business-like conversations in the spirit of compromise. Sometimes the parties who elect to do this are assisted by other experts, such as their family accountant.
- Negotiation between parties by lawyers
Here each party retains a lawyer to advise about the law and processes and how it applies to their case, including what outcomes may occur at court or mediation. The lawyer for each party must advise their client about the need for full disclosure, the pre-action procedures, and the genuine effort to resolve the dispute, which the clients must engage in before any court proceedings can be filed.
- Mediation by an accredited mediator
The type of mediation and mediator will depend on the issue to be resolved. In cases about what parenting arrangements should be made, a family dispute resolution mediator (FDRP) helps the parties reach an agreement about their children. In financial cases, an accredited mediator helps the parties reach an agreement about financial issues. Both types of mediators are retained to act as independent facilitators, and the mediation is confidential and cannot be discussed in later court proceedings if they eventuate. Plus, in cases about parenting, FDR is mandatory (subject to some very limited exceptions) before any court proceedings can be filed.
- Arbitration by an accredited arbitrator
In financial cases, the parties can agree that instead of negotiating further, they appoint an independent arbitrator to decide the property settlement and financial issues. The arbitrator reviews all the documents, hears the detailed submissions made by each parties’ lawyers, and then the arbitrator gives their decision which is then made into court orders. This option is still costly, but it means a family law expert decides the dispute and not the parties.
- Collaborative practice
In contrast to going to court or arbitration, is collaborative practice. If the parties agree to use collaborative practice to resolve their family law case, then both of them and their lawyers commit in writing to stay out of court. The work is then to resolve the case through a series of structured meetings and with the help of other experts (on children and/or financial matters), the focus being to problem solve and so reach an agreement on all issues.
- Conciliation as part of the court system
If legal proceedings are started by filing court documents, the parties will be directed to attend a conciliation conference before a registrar of the court and must make a genuine effort to resolve the issues in the case.
- Litigation
Where parties cannot reach an agreement, litigation is an option. It is the last resort as litigation is time-consuming, expensive and stressful, but it does set time frames and the case proceeds along the court pathway. Depending on the issues and the parties’ financial position, they will be required to engage in further dispute resolution (such as FDR or mediation) to resolve the issues. If the issues are not resolved, the case will be case managed and various directions made to ensure full disclosure, proper preparation will be made, and the case will be listed for hearing before a judicial registrar or a judge for a final determination.
Because there are a number of paths open and as various consequences flow from which pathway is chosen, it is critical that you get professional advice from a family lawyer, ideally, before or shortly after you actually separate from your partner and also before you begin any negotiation process with your partner.
Please contact our lead family law partner, Kathryn Kearley, for further information. Kathryn is an accredited specialist in family law with many years of experience and is a nationally accredited mediator and has collaborative practice training. Kathryn leads a team who can help you negotiate and record a practical and realistic agreement with your former partner.
Kathryn Kearley
Email: [email protected]
Telephone: +61 2 9804 5700
Article prepared by: Aleena Akram, Lawyer & Kathryn Kearley, Partner
