It’s accepted that lawyers and court proceedings are expensive, time-consuming and stressful. There are, however, several options you can consider that will keep you out of a courtroom. These options, if successful, enable court orders to be obtained, giving you the protection and certainty you need while avoiding the cost, stress and inconvenience of attending court.
One preliminary issue is whether and when to obtain legal advice. Lawyers typically offer at least 30 minutes of free consultation before being retained for legal matters. This enables them to understand the matter’s scope and provide some general legal advice. After this consult, you should better understand your options and have a realistic view of the process and the outcome you want to achieve. This information can be used to determine the best path forward to resolve any legal issues that have arisen due to your separation. Most couples and parents will not be familiar with family law and how the court system works, so having a no-obligation free consultation with a lawyer is prudent.
Kitchen table agreement
If your separation is amicable and you hope to reach an agreement with your former partner, whether about parenting matters or financial division of property, then the KITCHEN TABLE approach may work for you. This is shorthand for you to sit around a table (or exchange emails) and see if you can reach an agreement.
Once an agreement has been reached, you should seek legal advice to ensure that the agreement is fair and appropriate. After this step, you may decide you want court orders which set out the agreement in detail and are enforceable. Your lawyer can assist with drafting these documents so consent (agreed) orders can be obtained from the court. This process is efficient and cost-effective, and you will never have to set foot in a court because the documents are filed and dealt with administratively by the court.
For more information, you can read our article about consent orders[1], which explains in detail the process of obtaining consent (agreed) orders.
Alternative Dispute Resolution
The Federal Circuit Court and Family Court now require parties to undertake “genuine steps” to resolve their matter before launching court proceedings. Alternative Dispute Resolution (ADR) is an accepted method of taking “genuine steps”, and there are four options you can consider.
Negotiation
The first option you should consider is retaining a lawyer to NEGOTIATE a resolution with your former partner or their lawyer. You have the reassurance of receiving expert legal advice where the issues are identified, and if a resolution is reached, consent orders can be obtained.
Negotiations can occur via telephone, exchanging letters, or a conference between each party and their lawyers. This option can still work even if one party decides they don’t need a lawyer to represent them.
Mediation
The second option is MEDIATION, which is a private consultation process. You either attend a community-based mediation service offered by an organisation like Relationships Australia or Anglicare, or you can ask your lawyer to organise a mediator who will assist the parties in reaching a settlement.
Mediation can be undertaken after a negotiation has failed, or if you believe negotiating with your former partner is futile, you can proceed straight to this option.
Mediators, by design, are independent and do not give legal advice. Their independence, objectivity and ability to defuse emotive issues are key reasons why mediations are often successful and the most used form of ADR.
Take note that community mediation is required before the court can issue parenting claims.
Collaborative practice
The third option is COLLABORATIVE PRACTICE. This is similar to mediation because it is a private process, but there is no independent mediator. It involves you, your former partner and your legal representatives conferring together to resolve any issues. Importantly with collaborative law, you, your former partner and your lawyers:
- have a shared commitment to proceed honestly, respectfully and in good faith for the parties and the process;
- agree to negotiate a mutually beneficial settlement;
- create shared solutions taking into consideration the interests and priorities of both parties; and
- engage in an honest and complete exchange of information and documents.
This process focuses on each party’s goals (e.g. one party wanting to keep the family home), which is a productive way to view issues more objectively, allowing for fairer concessions that lead to satisfactory outcomes for both parties.
For more information, you can read our article about collaborative practice[2], which explains the advantages and disadvantages of this process.
Arbitration
The final and most expensive option is ARBITRATION. This is a private process where the parties hire a qualified arbitrator, usually a very experienced family lawyer or retired Judge, to determine the split of assets. It is like hiring your own private Judge who will review all of the paperwork and hear evidence before making a determination. If you don’t like the determination, you can appeal.
This process is more expensive than the other four options discussed in this article and it is only an option for financial matters, not parenting arrangements. However, it is quicker and less formal than a court trial, and there are many other benefits that you might find attractive. For more information, you can read one of our previous articles[3] that covers arbitration in more depth.
If you would like to discuss any of these options in greater detail, please feel free to reach out to our family law team.
