Keeping out of a family law court

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Keeping out of a family law court. Tips on how to reach a family law settlement out of court

The Family Courts have the job of ruling on disputes concerning property and children.  However they should be viewed only as a last resort for the vast majority of separating couples.

Family Courts are never happy places to be in.  There are always unintended consequences of going to court and the risk that you might not get what you actually want.  In fact, for some people, going to court makes things worse for them, often because they underestimated the process.  Unlike in television shows and movies, in the family courts there is usually no clear winner.

However, with the right advice and assistance, it is possible to achieve an out-of-court settlement in the majority of cases.

Tips on how to solve the dispute(s) between you and your former spouse or de facto:

  1. Communicate: If you can, speak with your former partner about what each of you want. There may be issues that you do agree upon. This helps narrow the issues in dispute. For instance, in a property matter parties need to identify all assets and liabilities in your respective names. Parties need to be able to make a full disclosure to each other of the things that you both own and what you both owe. If you disagree (eg as to values of real estate ) get valuations.  But keep all your communications civil.
  2. Engage a lawyer: Just because you engage a lawyer, doesn’t mean that you will always end up in court.  An experienced lawyer with a focus on settlement can save you time and money in the long run, particularly if your former partner also chooses a lawyer dedicated to settling the matter in the best interests of the parties.  Lawyers can take the emotion out of the decision making process.
  3. Mediate: Go to mediation with an accredited mediator (not just a relative or family friend who does not know how to mediate disputes).  This will help to identify the remaining issues in dispute. In children’s matters, you must attend mediation, or at least the attempt to mediate.  It is a pre-requisite to filing an application for a in order to go before a judicial office in order to resolve the issue or issues. There is no mandatory requirement for property applications. With larger asset pools, it is beneficial to engage in lawyer-assisted mediation, as your lawyer is on site to advise you of the potential outcomes and to formulate offers.

Below are the various methods you will need to consider when formalising a settlement

  1. Parenting plan:  For children’s matters, a mediator or lawyer can assist you to formalise the agreement reached into a Parenting Plan. This is a written agreement signed by both parties setting out the day-to-day arrangements for the children and may cover such things as who the children live with, spend time with, decision making, education, health, and any other issues concerning the children. These documents can be amended by agreement from time-to-time as the need arises, but they are not enforceable.  Many people make parenting plans that are just not thought out through, and the risk early failure.  Get professional help.
  2. Consent orders: An application for Consent Orders can be made to the Family Court of Australia in children’s matters and property matters. This only works if the parties both agree to the orders sought.  It is helpful to have the orders written by your solicitor to ensure that the proposed orders are adequate and enforceable. An application for Consent Orders sets out all the relevant facts and/or figures and allows a Registrar of the Court to make a decision on whether the proposed orders are just and equitable. If the Registrar is satisfied by the proposed orders, the orders are made and sealed and posted to the parties. It is not necessary for the parties to ever appear in court and the end product is a Court Order, which is just as enforceable as if delivered by a judge following a contested hearing – but much quicker and cheaper.
  3. Binding Financial Agreements (BFA): A financial agreement can also be legally documented in a BFA. This is a private contract, which requires strict compliance with the requirements of the Family Law Act 1975. These agreements require each party to have instructed a separate lawyer to give them independent legal advice. Due to the extra legislative requirements, BFA’s are usually more expensive than a settlement reached by way of a Consent Order. Provided that the Agreement is correctly drafted, however, they may be enforced in the Courts and can provide for stamp duty relief when transferring property between spouse parties. Children’s matters cannot be dealt with in a BFA.
  4. Child support agreements: You can also make a private agreement in respect to child support obligations with either a Binding or Limited Child Support Agreement, which can be registered with the Department of Human Services (formerly the Child Support Agency). Such agreements can cover periodic payments of child support and lump sum child support, in addition to non-periodic child support payments such as school fees and medical care. The Department of Human Services will enforce periodic payments set out in a Registered Child Support Agreement.

Please call Step Solicitors today to discuss the best way forward for you.

The information on this page does not constitute legal or financial advice.  It should not be relied upon in lieu of seeking professional advice on the specifics of your individual matter.