Keeping your family law matter out of the court system, using mediation and other out of court settlement options is more cost-effective, results in faster resolutions and will reduce stress and anxiety. You can save money on legal fees and be confident in the fact that you can make your own decisions about what the result will be.
Reaching an out of court settlement can be done in many ways, including:
direct negotiations between the parties;
lawyer assisted negotiation;
mediation or family dispute resolution (either with or without lawyers);
through a collaborative law model; and
arbitration (property matters only).
1. Direct negotiations between the parties
Direct negotiations between you and your former partner are a good option if you separated amicably, and you feel safe in doing so. These do not need to be formal negotiations, and can simply take the form of a few conversations where you both agree on the steps needed to be taken for you to move on with your lives.
Once you and your former partner have reached an agreement between yourselves, you can engage a lawyer to formalise this agreement (see below). We recommend that you obtain legal advice before committing to or acting on any agreement to ensure that you are aware of your entitlements and obligations under the law.
2. Lawyer assisted negotiation
Lawyer assisted negotiation is helpful where you and your former spouse are having difficulties reaching an agreement. This is common, as often a high level of emotions can be involved, making negotiations difficult.
A lawyer can assist by informing you of your rights and entitlements, and ensuring that your interests are protected. In this way, you are armed with the knowledge necessary to reach a fair outcome. If there is ever anything you are unsure about in the process, make sure to ask your lawyer for clarification. Each party will need their own lawyer.
Once an agreement is reached, your lawyer can assist you to formalise your agreement by way of Consent Orders or Financial Agreement.
3. Mediation/family dispute resolution (either with or without lawyers)
Family dispute resolution (better known as mediation), is a way for parties to come together with an impartial third party (the mediator) to work through the barriers that are stopping them from reaching a solution.
In parenting matters, parties are required to attend a qualified mediator in an attempt to resolve their parenting dispute before they can go to court. There are some limited exceptions to this requirement, for example urgent matters (eg, risk of child abduction) or matters that are deemed ‘inappropriate’ for family dispute resolution (e.g. family violence).
In property matters, there is no requirement for parties to attend mediation before issuing property proceedings in the court. However, they are required to participate in dispute resolution, whether this be by negotiations, family counselling, mediation, or some other method, to genuinely try and resolve their dispute. Although not strictly required by the court, mediation can be an excellent process to assist parties come to a solution on property matters. There are several types of mediation options available.
Joint mediation is where the parties and the mediator are all in the same room, sitting around the same table to discuss the issues preventing a resolution and, hopefully, reach a practical and reasonable solution. Some mediators provide this service remotely, via videoconference or teleconference.
Shuttle mediation is a model of mediation where the parties will be in separate rooms (at the same venue if it’s a mediation in-person), and the mediator will move from one room to the other to discuss the issues with the parties. If the mediation is remote, the mediator will move from one videoconference or teleconference to the other.
Legally assisted mediation is where the parties will attend mediation with their lawyer. This type of mediation is useful for separated couples to feel supported and ensure that their interests are being protected pursuant to the law, throughout the process.
Child-inclusive mediation is where the child is interviewed by a child consultant (a qualified professional who is separate to the mediator). The child consultant will pass on the child’s views and opinions to the mediator and the parties, so they can keep the child’s best interests and views at the centre of the decision making process.
4. Through a collaborative law model
Collaborative law is a form of collaborative practice where the process is led by lawyers representing each of the participants, and it has been previously agreed that the lawyers will cease acting if the parties later decide to go to court.
It allows the parties and their lawyers to negotiate a resolution in a non-adversarial setting without the threat of issuing court proceedings hanging over the participants heads. There is a commitment from all participants to conduct themselves honestly, make proper disclosure and genuinely attempt to resolve the dispute out of court.
Arbitration is a process where the parties to a property dispute present arguments and evidence to an arbitrator who makes a determination. It is not entirely dissimilar to court proceedings, but allows parties to have more control over the process – for example, parties usually choose the arbitrator themselves.
Parenting matters cannot be decided through arbitration.
In family law, arbitrations must meet the requirement prescribed in the Family Law Regulations 1984 (Cth) to be valid. For example, the arbitrator cannot be just anyone; they must be a legal practitioner who is either an accredited family law specialist or has worked in family law for at least five years. They must also have completed specialist arbitration training and be listed in the Law Council of Australia stating they are prepared to arbitrate under the Act.
To engage in arbitration, parties may enter into an arbitration agreement which contains the terms to which the parties have agreed. It can be conducted similar to court proceedings or can be in a more relaxed style.
Parties can also agree for the arbitration to be binding (parties agree to be bound by the arbitrator’s decision). An award (decision) made via arbitration can be given the effect of a court order by registering it with the court. Once registered, the award can be reviewed by a judge and can either be affirmed (approved), varied (changed) or reversed (not approved).
Formalising your agreement
Once you and your former partner have reached an agreement about property settlement and/or parenting arrangements, it should be formalised to provide finality and certainty.
In most cases, the easiest and cheapest way to formalise your agreement is by way of an Application for Consent Orders.
Consent Orders are exactly what they sound like – orders made by the court with consent from both parties.
Consent Orders are usually made in Chambers, without anyone having to physically attend court. Parties are not required to receive independent legal advice before signing Consent Orders, but the agreement will be subject to review by a Registrar of the Family Court of Australia.
If the agreement reached is considered to be fair and reasonable under family law, the process to obtain Consent Orders is generally straightforward. Once orders are made, the agreement becomes legally binding and the court can impose penalties if one or both parties fail to comply.
When couples separate, they usually need to divide up the property between them. This is known as property settlement in family law. Contrary to urban myth, there is no presumption at law that property will be distributed equally. That is, it’s not simply a 50:50 split.
We look at the difference between child support and adult child maintenance and how they are calculated. In a nutshell, child support is paid by one parent to another for children under 18 years old, while adult child maintenance is paid for children over 18.
It’s important to consider the superannuation held by both parties as part of any property settlement negotiations. But what if a party does not disclose, or under-discloses, their superannuation interests?
In October 2023, the Australian Parliament passed major changes to how parenting matters are dealt with in family law. These changes come into effect from May 2024. Importantly, they are NOT retrospective. Learn more about how these changes may impact parenting matters.