Pub­li­ca­tions

Medi­ate, col­lab­o­rate or lit­i­gate — resolv­ing your Fam­i­ly Law matter

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.