Often the best way to reach a resolution is outside of court. When you apply to the court, decision making is out of your hands and a judge decides who your children live with or how your assets are divided. While sometimes it is the only option, it's not ideal as the court process can be lengthy and expensive. There are several options to help you finalise your settlement without involving the court.
Resolving Your Matter Outside of Court
How do I negotiate to finalise my separation?
Usually, the first step in any dispute is to attempt to negotiate. You are able to do this without lawyers if you are able to or you can engage a lawyer to send correspondence to the other party to attempt to reach an agreement. This process can be useful to start prior to attempting mediation or court application as both parties then understand the position of the other and are better prepared for what might be an achievable agreement.
In order to negotiate effectively, it is best if you receive legal advice before making any proposals so you understand what you are entitled to and what a likely outcome would be in court. You should also obtain legal advice prior to finalising any agreements to ensure that you have reached a fair settlement. Once you have finalised your financial matters, you are unable to reopen your settlement unless there has been fraud or duress from one party.
At times, it is obvious from the start that negotiating without third party assistance is not possible so you can then turn to mediation or arbitration. Sometimes, you can spend months negotiating and still not reach an agreement then your next step is to move on to mediation.
What is a Family Dispute Resolution Conference or mediation?
The law requires that parties attend a Family Dispute Resolution Conference, commonly known as mediation, and make a genuine effort to reach an agreement prior to lodging an application with the court for parenting matters. There is no requirement to attend mediation in property matters. There are certain circumstances where parties are exempt from attending mediation and you should check with a lawyer to see if you fall into one of these categories. If you participate in mediation, you will receive what is called a '60I' certificate and this enables you to apply to the court.
Mediation is a meeting conducted with you and the other party to try to reach an agreement. A mediator oversees the meeting and guides you through the process. A mediator is not able to make any decisions and cannot give legal advice so you may wish to obtain legal advice prior to your mediation or bring a lawyer with you. Everything mentioned in mediation is confidential unless both parties agree for that information to be used in the future or discussed outside of mediation.
A parenting mediation, otherwise known as a FDRC, should be conducted with a qualified Family Dispute Resolution Practitioner (FDRP) so they are able to issue you with a certificate (called a 60I certificate) that confirms you attended mediation. If you do not reach an agreement and need to apply to court, you require this certificate in order to make that application. A property mediation does not require an FDRP as you do not need a certificate in order to apply to the court. However it is important that you select a mediator who is experienced in running family law, particularly property, mediations so that they are able to better guide you to reach a solution.
What is arbitration?
Arbitration is used for property proceedings when both parties present their 'arguments' to an arbitrator and then receive a decision about how their assets and liabilities should be divided. An arbitrator has experience in understanding what a court is likely to order and considers the case law that is applicable to your individual case. While an arbitrator is not a judge and their decision is not binding, when you agree to arbitration you agree to be bound by their decision and to finalise your financial settlement based on their decision.
You are not required to have a lawyer at an arbitration however it is in your best interests to do so. An arbitrator makes a decision similar to how a judge would therefore it is important that you engage a lawyer who is able to present a coherent arguments as to why you should receive the portion of the property pool that you have suggested to the arbitrator.
How can we finalise our agreement?
There are several ways that your agreements can be finalised. You do not have to have a legal agreement although it is in your best interests to do so. If you do not finalise your parenting arrangements formally then you are not able to enforce any agreements that you have made in the past if one party changes their mind. If you do not finalise property agreements formally, then you will be financially tied to the other party as long as your assets or liabilities are in joint names and the Family Courts will not help you resolve any disputes if you are outside the time limits.
For parenting matters, you can finalise your agreements through a parenting plan (not legally enforceable) or Consent Orders. For property matters, you can finalise your agreements through Consent Orders or Binding Financial Agreements. To obtain Consent Orders, both parties need to draft and sign an Application for Consent Orders and Minutes of Consent and send them to the court for sealing. For a Binding Financial Agreement, the BFA must be drafted and both parties must receive independent legal advice before signing.