Do we have to go to Court?

By 2 May 2017Family Law

You and your spouse have separated and there are a number of matters that need to be dealt with such as the care arrangements for the children, the division of assets and the divorce. You may think that dealing with these issues means that you and your spouse will have to go to Court. This can be a daunting thought for most and some people may put off dealing with these very important matters for fear that they will end up in court. Fortunately, this does not have to be the case.

Parenting and Property Matters

In the Australian family law system, there is a strong focus on assisting people to come to an agreement about their family law issues. This strong focus on early dispute resolution means that most matters will resolve either before a party files an application with the court or at some stage during the court proceedings but prior to a judge having to make a final decision.

Mediation:

Mediation is a great tool to assist people to reach an agreement about their family law matters and can be undertaken at any stage in a matter. In parenting matters however, parties are required to attempt mediation before filing an application in the court for parenting orders.  There are exceptions to this in limited circumstances such as where the matter is urgent or where there is or has been family violence.

The mediator, who is independent of both parties, will facilitate discussion about the particular issue(s) in dispute. Some mediation services are government funded such as the Family Relationships Centre. There are also a number of private mediators who will assist parties to reach an agreement in relation to their parenting or property matter. Mediation can take place with or without solicitors being present. Either way, it is highly desirable that both parties seek independent legal advice from an experienced family law solicitor before undertaking mediation because the mediator will not give legal advice. Having specialist advice about your particular family law situation before mediation, will ensure that you are then in the best position to negotiate an agreement with your former spouse.

Documenting your agreement:

If an agreement is reached at mediation, you should take the agreement to your family law solicitor so the agreement can be properly documented. This is particularly important in property matters as failure to document your agreement can expose both parties to a claim for property orders in the future. Your solicitor can advise you on whether the agreement reached is sound and falls within your range of entitlements having regard to the relevant considerations under the Family Law Act. The agreement can be documented through either Consent Orders or a Binding Financial Agreement, with Consent Orders being generally the preferred way of documenting an agreement. Once signed, the Consent Orders are filed with the Court, with there being no need for either party or even a solicitor to make an appearance at court.

If an agreement is reached in parenting matters including matters about which parent a child should live with and how and when the child should spend time and communicate with the other parent, it is a good idea to document the agreement. Parenting agreements can be documented through a parenting plan or consent orders. Parenting plans are not enforceable whereas consent orders are. You should discuss with your solicitor which method of documenting your agreement would best suit your needs.

If an agreement is not reached at mediation, do not despair. Your solicitor can still work with you to negotiate a settlement. Negotiations can also continue even after an application has been filed with the court. Statistically, most applications that have been filed in court will settle at some stage before a judge is required to make a final decision.

Divorce

Divorce is the formal dissolution of your marriage. Whilst a divorce application must proceed to a hearing, the divorce application process is fairly straightforward and in some cases, no attendance at court is required at the divorce hearing.

Article by: Yvonne Cox