Australia: Mediate, collaborate or litigate - resolving your family law matter

Last Updated: 12 July 2019
Article by Annette Wilson

There are a number of ways in which you can resolve your financial and parenting issues after a relationship breakdown.

The first and least expensive way to resolve these issues is to discuss them with your partner and attempt to come to an agreement.

You should obtain legal advice before attempting to resolve the issues yourself. This can be helpful because it will give you an understanding of how the court deals with the division of property and the care of children after a relationship breakdown. You will then have some parameters to allow you to discuss your own unique situation with your partner. A relationship breakdown is a very difficult situation for both parties. It is likely that it will take more than one meeting to resolve your issues, however, if you feel that you are making progress you should continue the process until you have exhausted that avenue.

Mediation

If you are unable to discuss with your partner the division of your assets or the care of your children you can obtain the assistance of a mediator.

A mediator is a third person who is impartial and who will assist both you and your partner to come to an agreement. It is their role to facilitate an agreement and to guide the parties through any difficult conversations relevant to their circumstances. A mediator does not provide legal advice and it is important that, prior to attending any mediation, you obtain legal advice so that you are aware as to how a court would deal with your particular matter.

Mediations can be conducted between yourself and your partner only or they can be conducted where both parties or one party has a solicitor representing them. Further, some mediation services provide two mediators, one for each party, to support them through the process and to minimise as much as possible the trauma and conflict which sometimes exists when parties are discussing these very sensitive issues.

Collaboration

Collaboration in the context of a relationship breakdown is a process where parties and their lawyers enter into a contract to negotiate an outcome without resorting to litigation. If you and your partner are both committed to resolving your financial and/or children's issues without resorting to the courts, there are many well qualified solicitors who work in a collaborative law setting.

The way collaborative law works is there are a series of meetings between the parties and their solicitors with the set aim of trying to resolve both the parenting and property issues of the parties. Often these meetings are between four and seven in number, however, they can be less or much more depending on the complexity of the issues and the persons involved. Very often it is not only solicitors involved but also there are other professionals who provide assistance including psychologists, financial planners, accountants or any other expert who can assist.

The experts are neutral and provide open and honest advice to both parties with an aim of reaching a resolution which meets as much as possible the needs of both parties. The aim of the negotiation in a collaborative setting is to allow yourself and your partner control over the process and for you to set the pace and the content of the matters to be discussed. There is enough time within this process for both parties to be heard and for everyone to understand the implications of what an agreement will mean and the options which are available to resolve any particular issue. All parties in this setting do their best to make it as pleasant as possible and to work together to obtain an outcome.

Negotiation

Negotiation through solicitors is another way in which people can obtain a resolution of their issues. This is the most common way that people resolve their differences and it involves both parties engaging solicitors.

The solicitors communicate with each other and obtain appropriate disclosure and also ventilate the issues from the perspective of their own client. Once full disclosure has been made and the issues identified, then it is very likely that the solicitors will arrange a settlement conference so the parties can meet and try and resolve the matter.

A settlement conference can occur with both the solicitors and parties in one room or where the parties are in separate rooms and the solicitors meet and attempt to resolve the matter and then return to their clients to obtain updated instructions during the conference. Very often a settlement conference can last many hours and, on some occasions, there is more than one settlement conference. If the parties are unable to resolve their issues at the settlement conference they will continue to be represented by their solicitors.

Litigation

Unfortunately, if you are unable to resolve your relationship issues by any of the above methods, the way in which you can obtain a resolution is to file an application with either the Family Court of Australia or the Federal Circuit Court of Australia. This is known as litigation and occurs when two parties are unable to resolve their differences and resort to the court to settle the differences for them.

The manner in which this process is commenced is by filing an Initiating Application with the Court. Once the Initiating Application has been filed, it is served on the other party and that party will then file and serve a Response to the Initiating Application. At the same time as filing and serving the Initiating Application and Response, the parties are required to file and serve a Financial Statement if it is a property matter.

The Financial Statement sets out the assets and liabilities of each of the parties and provides both the other party and the court with an understanding of the asset pool that the court is being required to divide.

Prior to commencing proceedings with respect to children the parties are required to obtain a Section 60I Certificate from a Family Dispute Resolution Practitioner. If you do not obtain a Section 60I Certificate then you are unable to commence proceedings in the court with respect to your children. There are some exceptions to this Rule which includes family violence, abuse or urgency.

Even if you file an Application with a court you are encouraged throughout the litigation process to attempt to resolve the matter with your former partner yourself. However, if you are unable to do so then the matter will come before a judge who will make a final decision about the issues of your relationship, both financial and children, on behalf of both parties.

An agreement reached through any of the methods described in this paper will need to be recorded in a manner acceptable to the court. You will be required to record your agreement in Consent Orders sealed by the court or a Binding Financial Agreement. If you are in the court process and your matter is determined by a judge, then the judge will provide a judgement and orders which will resolve the matter. The judgement will provide the reasons why the judge makes the orders that have been made.

Conclusion

One of the factors which you should consider when determining your financial and children's issues is the cost. Litigation is likely to be the most expensive way of resolving your matter and can also be emotionally exhausting. It usually takes between two and three years to reach a final hearing date, having regard to the current court delays. However, unfortunately, there are times where parties have tried all other options and litigation is required.

At Swaab our lawyers are accredited specialists and a number have been trained in collaborative law. We are experts in the field of Family Law and if you require our assistance please contact us to obtain detailed advice with regards to all processes available to assist you to resolve your matter.

For further information please contact:

Annette Wilson, Partner & Family Law Accredited Specialist
Phone: tel:+61 2 9233 5544
Email: amw@swaab.com.au

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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