The majority of family law matters are settled outside of Court.
There are a number of steps that couples can take to resolve the
legal aspects of their relationship breakdown amicably.
It is important for each party to obtain timely independent
legal advice from a specialist family lawyer. Detailed legal advice
will inform each party about:
the Court's process for dealing with a family law
the principles that the Court will consider;
the kinds of facts that the Court will consider relevant or
the time and costs involved in litigation;
the likely outcome of a Trial; and
the alternatives to Court.
Legal advice will help the parties have realistic expectations,
and therefore assist them to negotiate sensibly.
Alternative Dispute Resolution
The Family Court requires couples to attempt Alternative Dispute
Resolution (ADR) before they are able to commence proceedings in
Court in some circumstances, and in others to at least have
attempted conferral. ADR is usually done by way of mediation, where
the parties have an opportunity to discuss the issues in dispute
with (or without) the support of their solicitors.
Relationship breakdowns are fraught with emotion. Each party
should make their best efforts to be rational and reasonable when
discussing the terms of a settlement. Removing emotion from the
settlement discussions will increase the chances of reaching an
Even if the parties do not reach a complete agreement at
mediation, they are likely to:
narrow the issues in dispute; and
get an idea of what the other party wants.
Provide Full and Frank Disclosure
Both parties to a family law matter are under a duty of
disclosure; r 13.01 of the Family Court Rules 2004. This means that
they must provide copies of all relevant information and documents
to the other party. The earlier each party provides their
disclosure, the faster the negotiations can move. A party's
prompt disclosure also demonstrates their willingness to engage in
the process and cooperate with each other.
Make an Offer of Settlement
If a party makes a genuine offer to settle, then this
demonstrates that the party is serious about settling outside of
Court. The first offer of settlement also serves as a starting
point for counter offers and further negotiation.
The parties should make every effort to compromise where
possible. Firstly, the parties should agree upon the current values
of the assets and liabilities of the relationship. This should be
done as a matter of priority, as it is difficult to negotiate in a
meaningful way without knowing the values of the assets and
liabilities. If the parties cannot agree on the value of a
particular asset, then they should obtain a joint appraisal or
While each party may want to keep specific assets, they should
also be cautious that their legal costs in pursuing that asset do
not exceed the value of the asset itself. It is not worth spending
$20,000 in legal fees arguing over an asset worth only $10,000. For
that reason, each party should be reasonable and flexible as to
which assets they want to keep.
Best Interests of the Children
Above all, the parties should prioritise the best interests of
their children. The children are entitled to have a meaningful
relationship with both parents. The parties should consider the
needs of the children and, in particular, the importance of a
stable routine for the children.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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