How to work it out - Modern Divorce

How to work it out

Process

The process that you and the other party use to resolve your family law matter can be the biggest factor in determining the outcome and the time, expense and emotional cost of reaching that outcome.  It is important to make an informed choice not only about what the solution is but how to get there.

Broadly speaking the options are:

1. Direct Negotiation between you and the other party;
2. Mediation;
3. Collaboration;
4. Negotiation through lawyers;
5. Going to Court.

Which one you choose depends on a number of factors. Some of the factors which may be relevant in making your decision are:

1. What discussions have already taken place;
2. The degree of goodwill, anger, fear or emotion between you and the other party;
3. Whether you are on equal terms with respect to power and knowledge; and
4. The extent to which specific outcomes or interests are a priority for you.

Direct Negotiation is recommended as a first step if there is a low level of anger, fear or emotion and there is broad equality in power and/or knowledge. Both Mediation and Collaboration are excellent ways of resolving issues without the delay and expense of going to Court. They both focus on things that are important to you rather than exclusively what the law says.

The advantage of Collaboration over Mediation is that you have a trained lawyer advocate with you to help through the process. Negotiation through lawyers and going to Court are based on finding the legal outcome. This approach is needed when parties get stuck in other negotiations or there is delay, dishonesty or unreasonableness.

Collaboration

Collaborative law is our preferred method of resolving matters in relation to child custody and/or financial matters in most cases.

Collaborative law is a process used to resolve family law disputes. We find that Collaboration allows parties to be involved in and control the process in ways that they otherwise would not if the matter went to Court. Collaboration works well for both ‘easy’ cases and ‘tough’ cases, this includes where the other party is difficult to deal with and or where the circumstances of the case are complex.

The process starts by you and your former partner agreeing not to go to Court. Although this doesn’t necessarily mean that you like each other or that you are able to get along, it does mean that you both recognise that Court is damaging for families and you want a process which leaves you and your family better off, rather than feeling further apart.

It is a dignified and confidential process, in which your private matters are not aired in open Court and where the parties all agree not to disclose confidential matters.

If the process fails (and the statistics as well as our experience tell us that very few do fail), both parties’ lawyers and other professionals who are involved in the process can no longer act for the parties.

Collaboration is a process in which the focus is on your interests (what is important to you) not necessarily only on what your legal rights are, or just what the law says is ‘fair’ (which is often very uncertain and doesn’t necessarily match up to what you think is fair).

Importantly, in the process you are not left on your own. Each party has their own lawyer who is there to understand fully what is important to you and to ensure that is taken into account in the negotiations including those things that a Court would not consider. E.g. how can I try to ensure that the children will not have to switch schools as a result of a property settlement and having to sell the matrimonial home).

The two lawyers work as a team, along with other relevant professionals when appropriate, such as accountants, financial planners, child psychologists and coaches.

Collaboration is generally more cost effective and faster than litigation. And in Collaboration, it is often the case that one of the preliminary matters that needs to be dealt with is how the parties pay for the process. This often means that instead of one party having incentive to delay matters and ‘run up’ the legal costs for the other party, that incentive is removed.

Although it is not possible to issue subpoenas in a Collaboration, there are other ways to gather information, including having the other party sign an authority which authorises you to ask questions and get information directly from professionals or institutions.

Any agreement reached via the Collaborative process is binding and enforceable, this includes agreements in relation to children if the parties decide that the agreement should be formalised.

Mediation

In many cases, prior to going to Court to make an application in relation to parenting matters, you need to have attempted mediation, either via a public mediation organisation such as Relationships Australia or a private mediator who is able to issue you a Section 60I Certificate

There are a number of circumstances in which you may not require a Section 60I Certificate in order to make such an application. These include instances such as when you have previously tried mediation and been issued a Section 60I Certificate within a certain period of time; or when there are circumstances in which the Court may consider that the application is urgent or in other circumstances.

Mediation can be very useful in helping parties resolve matters in relation to children. However, prior to engaging in mediation it is important that you meet with a lawyer to get an understanding of your legal rights and also understand some of the risks of entering into an agreement that you do not consider to be in the best interests of the children (even in the short term). It is important to remember that mediators are not there to provide you with legal advice or to represent you. The role of the mediator is to ‘mediate’ between the parties and try to get an agreement.

Court – Parenting Orders

The Court can make Orders in relation to children which include matters such as:

  • Who the child lives with and who the child spends time with (‘child custody’);
  • What type of contact the children have with their parents and other people and what sort of restraints (if any) there will be on that contact;
  • Who has the power to make long term decisions in relation to the child (e.g. where the child goes to school; what sort of medical treatment the child will receive; what religion the child will practice etc);
  • Where a child will live;
  • Whether a child will be able to travel outside of Australia and what (if any) will be the conditions of the travel;
  • Involvement of counsellors or other people in the child’s life;
  • Whether one party can obtain a passport for a child in circumstances where the other parent has not signed a passport application form;
  • Orders which restrain a party from doing certain things when the child is in that person’s care.

Parties can apply to the Family Courts (either the Federal Circuit Court or the Family Court of Australia, depending on the circumstances of the case) for Orders in relation to these matters.

This application generally involves filing an ‘Initiating Application’ which is a document which sets out the Orders the party is seeking both on a final as well as in interim basis in some cases.

This application is accompanied by an ‘Affidavit’ or several Affidavits which set out the evidence that the party is relying on in support of their application. It is important to have an understanding of what evidence may be required in order to maximise your chances of being awarded the Orders you are seeking, both at the early stages of the proceedings as well as at the final stages of the proceedings.

It is our experience that the outcome of the case is significantly impacted upon by what has happened prior to the parties filing an application in the Court and also what is contained in these early documents. Therefore, you should obtain advice and arm yourself with the relevant information you need well before commencing Court proceedings.

Court – Property Settlement

If however, a separated couple is unable to come to an agreement, either party can make an application to the court for a property settlement.

When considering property adjustments, the court is given a very wide discretion to determine a property settlement which is ‘just and equitable’ to all involved parties.

The court will apply a 4-stage process to determine a just and equitable property adjustment.

Stage 1: The court must first determine the size and nature of the property pool. The property pool includes the couples assets, liabilities and superannuation in both individual and joint names. Both parties will be obliged to provide disclosure of their assets to the court and the other party. Depending on the size of superannuation involved, a couple’s superannuation may be placed into a separate asset pool.

Stage 2: The court will then look to both parties contributions to the relationship and family. Both financial and non-financial contributions are included. So if one couple has worked full time and one has cared for the children the nature of both contributions will be considered.

Stage 3: The court then looks to the future needs of both parties. A person’s future needs include their age, health and earning capacity after separation. The needs involved in caring for children after separation are also considered. This is where the court will discuss if spousal maintenance, child support or a one off future needs payment is required.

Stage 4: Finally after considering the above three stages, the court must determine what would be a just and equitable property settlement.

Under the Family Law Act the Court will generally determine a property adjustment based on a percentage adjustment (for example 45/55). Your lawyer will provide you with a percentage range based on their estimate of what the court will award.

If along the way you and your former partner come to an agreement about a property settlement you can lodge consent Orders with the court at any time during the litigation process.

If you’d like to collaborate or mediate, we recommend doing it all over a weekend to save costs and time through our service, which we call Settle by Sunday.

 

If you want advice on what we think a Court might give you on a percentage basis then we can do so if you contact us via instant message or get a quick, cost effective family law advice.

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