July 18 2023
Your world has changed, and everyone from your mother to your best friend, to your mates at work are telling you different things.
You don’t know what you and your former partner do and don’t agree with, because you are not talking to each other.
The best thing you can do, even if you and your former partner are getting along, is to speak to a lawyer with experience in Family Law. (If your former partner is trying to stop you from getting legal advice, either by making threats or saying you can work things out without lawyers, you probably need it even more.) An experienced Family Lawyer will be able to guide you through working out what you want, what you need, what’s fair and what’s practical and what might be the best way for you to get there.
Some of the points many recently separated people need to think about are:
• Safety – do you need an Intervention Order?
• How often are the children going to be with you or your former partner?
• Where do you (and the children) want to live?
• Do you want to keep the house, or do you want it sold?
• What about Child Support (maintenance for the children)?
• Do you both have enough money to live on?
• Who will pay the mortgage or rent or other debts?
The Family Law system has also changed. What used to be two separate Courts have joined forces to become The Federal Circuit and Family Court of Australia (“FC&FCOA”) (https://www.fcfcoa.gov.au/ ).1 The new Court has new rules which can be found at https://www.fcfcoa.gov.au/resources/legislation
The FC&FCOA is also encouraging parties to “separate smarter”, a large part of which is to try to mediate your differences2. You are now required (with certain narrow exceptions for urgent matters or relating to safety) to try to resolve your differences via negotiation and mediation before applying to court3. If you try to apply to court before doing so, you can face serious consequences including being required to pay the other party’s legal fees.
Going through mediation makes it even more important to get legal advice early. An experienced Family Lawyer will be able to advise you about your legal rights and responsibilities. Your lawyer can also help you to prepare for mediation, to increase the chances of it being successful.
Mediation can also be useful, with proper safety measures, where there has been family violence, including coercive control, or other factors that make one party vulnerable. It is important to tell the mediator about these factors as early as possible. In these circumstances, it is even more important to have legal advice and possibly representation. With the right representation, mediation can give vulnerable parties more autonomy and control than going through the family law court system.
Another change is that you are required to provide relevant information (“disclosure”) as part of the negotiation process, before going to court instead of waiting until the Court orders it. While this might sound simple enough, many people find this process confusing and difficult. It also means that more of the formal work and organisation required happens much earlier than it used to.
The advantage of mediation, if you are properly prepared for it, is that you avoid the delays, the legal costs, the conflict, and the lack of control that comes if you are unable to resolve your differences and you go down the route of going to court.
Speak to a qualified and experienced Family Lawyer, it will save you money and conflict in the longer term.
June 27 2019
So, you’ve decided you want to resolve your family law problem by agreement. (To find out the pros and cons, see my post, “Reaching Agreement”.)
How do you get there?
Some separating / separated couples are able to sit down over a series of meetings and work things out themselves. The most successful of these will negotiate themselves, each get their independent legal advice and then come back and negotiate the detail. In these cases, there is little for lawyers to do, other than to ensure that the agreement is property documented.
Mediation is another common method of reaching agreement. In mediation, you have a third person, the independent mediator, who attempts to facilitate communication between you. Usually a mediator will first of all find points of agreement and then will work with you on the points of disagreement.
Mediation is often very effective, either to reach agreement, or if agreement can’t be reached, to work out what the real points of difference are, so they can be worked on, often without escalating the dispute. Mediation is also usually ordered by the Family Law courts in cases where there is a financial dispute.
If your case is at all complex or difficult, it can be useful to have lawyers representing you at mediation. This means that you can access legal advice on any proposals that are put forward at the time and that a final document can be organised or planned at that mediation and signed off by both parties. Having lawyers present can also redress any power imbalances in the relationship.
If your Family Law dispute is about children, then the Family Law Act mandates a form of mediation known as ‘Family Dispute Resolution’. This is generally a mixture of counselling and education through an interview process followed by mediation. Typically, in Family Dispute Resolution, the mediator will have a more active role, particularly in trying to keep parties ‘child focussed’ during the mediation. Generally, lawyers do not attend Family Dispute Resolution.
Another form of reaching agreement, which is the one least discussed but most practised, is negotiation via lawyers. Lawyers are trained and educated not only in the area of law in which they practice but also to ‘advocate’ or speak for their client. If you are in the midst of a distressing relationship breakdown or if there are painful feelings associated with the breakdown of the relationship, it makes sense to have a trained advocate speak on your behalf.
Whatever method you want to use to reach agreement, it can make good sense to have a lawyer represent you. A good lawyer will have a clearer view of what the issues are and what is legally relevant. A lawyer is also able to advise you, throughout negotiations, as to the benchmark of what a court would be likely to do, if you can’t reach agreement and what your legal options might be.
The really important aspect of reaching agreement is communication. During times of relationship breakdown, often the last thing people are able to do is communicate with each other. However, if you look at reaching agreement as a process for moving forward rather than for re-hashing the past, that might make it easier.
January 9 2018
There are huge advantages in reaching agreement about Family Law issues rather than going to court.
By reaching agreement you:
• are also able to control the process, timing and scope of your parenting or financial arrangements
• have the flexibility to make arrangements that a Judge might not make
• tend to avoid the entrenched bitterness and inevitable nastiness that goes with the court process
• focus on the future (to solve a problem) whereas going to court often means that parties are dwelling on the past and what went wrong in the relationship
• save money on legal fees. Even having a barrister involved in helping to negotiate and draft a final agreement, in more complex property matters, is only a fraction of the cost of the case being prepared for court and going through myriad court events and proceedings.
But what actually constitutes ‘agreement’?
Have you actually discussed a proposal with the other party, or are you just assuming that your proposal is what they would want?
Have you thought about the details?
You know the old saying “the devil is in the detail”?
It often applies to Family Law cases where people say that they have reached agreement. I often have clients come to see me for their initial interview and confidently tell me that they have reached agreement with their former spouse or partner and all they want is to have that agreement ‘written up’. Frequently they expect that I will be able to prepare a document and speak to both parties and advise them the best way of achieving what they want; a little like selling a house or car.
For example, a common agreement will be “Jess gets the house and takes over the mortgage; we each keep our own car and superannuation”. Sometimes, Jess might have to pay out Joe or sometimes not.
Then, like any good lawyer, I start to ask questions.
• What if
• The bank won’t agree?
• The bank values the house for re-finance and its worth a lot more or less?
• Who’s going to pay what debts?
• Joe changes his mind?
• Jess loses her job before the deal is done?
• Joe loses his job and can’t pay child support at the same rate?
• One of them re-partners and the relationship sours?
• How do you make sure each party does what they say they will do?
• What would you get for the house if you sold it?
• How much is the mortgage? In other words, how much equity do you have?
• What about the timing?
• How much superannuation do each of you have?
• Who gets to stay in the house until the transfer?
• Is the proposal objectively fair (fairness is in the eye of the beholder!) – does it take account of the different circumstances of each of you?
If you want the Agreement to be legally binding, you need to comply with the procedures laid down under the Family Law Act . The reason for this is to make sure that only agreements where parties have either had the opportunity to make an informed decision and give informed consent or where the agreement largely or broadly reflects their legal entitlements, are enforced by the law.
One of the Family Law rules is that each party must have independent legal advice. This means that each party must see a lawyer of their own, and not two lawyers in the same firm!
Times of stress are not good times for making rational decisions, particularly if those decisions are going to have lasting consequences.
So it pays, in more ways than one, to get some competent Family Law advice before you go too far down the track of trying to reach agreement.
My next offering will be about your options for documenting agreements, once they are made.
August 27 2014
I find that clients and their supporters often have “myth-conceptions” about “going to Court”. How often have you heard words “I’ll take you to court” said as a threat? Perhaps your lawyer has discussed “issuing court proceedings” with you.
People often have the idea, gleaned no doubt from film and television, that they and their lawyer just turn up at court. The judge is ready to hear their case immediately. They and the other party go into the witness box and get cross examined by a lawyer pacing the floor in front of them. Then the judge makes a decision and the most deserving person “wins”. It’s all very fast and dramatic! This is not how it works! Courts are all about “due process” – making sure that any decision is made in the right way, after balancing the competing claims.
What does it mean, to “go to court” in a Family Law case?
It means that one of the parties in the case believes that there needs to be a legally binding and enforceable decision or directive about one or more of the issues in dispute. To achieve this, they must take formal steps to ask a court to make that decision. In Family Law, this is done by one party issuing an application – a formal document that sets out, as precisely as possible, the orders that party wants the court to make. The application has to be in writing and is processed by the court’s administrative staff, (“filed”). The court staff will note the first hearing date on the front of the application. There is a court fee that has to be paid at the time the application is filed, unless you qualify for an exemption due to financial hardship.
In most cases, the application has to be formally given or sent to the other party (“served”) before the first hearing date. The other party must be given enough time to answer (“respond” to) the application, possibly with their own set of orders that they want the court to make. In Victoria, it tales between four to eight weeks from the date of filing the application to the first return date.
Urgent matters
Occasionally the court is persuaded that an order has to be made with extreme urgency (for example if the other party is believed to be on the verge of removing children from the country, or the safety of children is at imminent risk or someone is on the verge of disposing of property in such a way that the other party would suffer irreparable loss). Sometimes, if the matter is urgent, but not so urgent that the other party shouldn’t have some opportunity to put their case to the court, they may only be given a few days before the first hearing. This is called “abridging” time.
Where a party is asking for either urgent orders or for short term or “interim” orders to be made, they will also have to file an affidavit (a written and sworn statement of facts) with the court, setting out the facts that they belive show the reasons for the orders they are seeking to be made.
And then…
There will then be one or more court hearings, and / or conferences and attempts at mediation, many letters and numerous court documents prepared (including affidavits for all the evidence) before the case will reach the final hearing, (also called “the trial”) before a Judge. It usually takes somewhere between six months and a couple of years (depending on the type of case) to get to this point. Over 90% of Family Law cases in Australia settle before reaching this stage. If your case does go to trial, then each party and their witnesses give evidence and are cross-examined – but never by anyone pacing up and down in front of them! After hearing all the evidence and after each side has presented their arguments to the Judge, he or she will make a decision.
For more information, see the Family Law Courts “About going to court”
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/About+Going+to+Court
Wondering whether you should go to court?
Well that’s a whole new topic!
September 29 2014
In my last post, I talked about the formalities of “going to court” – how you actually get there. As I discussed , going to court is not the dramatic solution to all your problems that is sometimes portrayed in popular culture. In our legal system, going to court involves protracted and formal steps.
This time, I thought I’d take you back a few steps, to see whether you really should go to court, or whether there might be better alternatives.
The Down Side of going to Court
A Judge must decide a case not according to his or her sympathy, or concept of “fairness” or even moral considerations, but on the basis of the law that relates to that case. What’s more, that decision will be based on what facts are proved by the evidence before the court. There are strict rules about what evidence can be considered by the court and what weight it should be given. (For example, you might “know” or it might be “common knowledge” that the other party has been cheating the tax office. How do you know this? Do you simply believe that the other party is earning more money than they disclose? or has one of their mates told you their working for “cash” or do you have a detailed knowledge of their financial affairs, including access to their business and accounting records?)
Unless you can prove the truth of what you’re saying, the Judge can’t take it into account. Obtaining the necessary evidence to prove each and every part of your case that is opposed by the other party can be time consuming and expensive. Can you afford or do you want to spend the money on lawyers? (While I believe spending your money on lawyers to be money well spent, you might have other ideas!)
All the while you are stressed because you have a court case hanging over you and you can’t move on with your life until the case is over. No-one can guarantee what decision the Judge will make (if they could, you wouldn’t be waiting for the decision, would you?) And then, the Judge might make a decision that neither you or the other party wanted!!!
So, what are the alternatives?
Dialogue
Provided you are safe, talking and listening to the other party is often the best place to start.
This does not include lecturing, recriminations, blaming, telling them what they have to do, yelling, sarcasm, threatening or other impolite conduct. It means polite, honest and respectful dialogue; you really listen to the other party and consciously try to understand where they are coming from. Then try to address their concerns, then explain your point of view to them. As you are breaking up, this will probably feel strange and unfamiliar. To avoid going back into the bad old habits, I often recommend to clients that they meet over coffee at a neutral place.
Having a polite and reasonable conversation with the other party can be incredibly difficult. It takes guts and good will, but it can be done and it can be very rewarding. You might be afraid or embarrassed because of what has been said during arguments, you may think it won’t work so why try? These feelings are often just a habit you’ve got into. It is natural to want to tell them just how hurt you feel and where you think they went wrong! However, having the polite and reasonable discussion about future actions, might be really worthwhile! I often find that clients come back from these discussions with new insights and either agreement or some positive proposals that can be negotiated further, to reach a settlement. I’ve prepared the formal paperwork for many cases where people have worked through very painful and difficult decisions with their former partner. They’ve saved themselves huge legal fees and come up with arrangements that are really tailored to the best interests of the whole family.
If you don’t feel comfortable talking to the other party face to face, consider a telephone call. Try to avoid text messages and emails – too often they just become a way of parties trying to score points against each other.
Mediation
If you can’t talk reasonably with each other, another option is mediation, using a neutral third party to assist with negotiations. In some cultures, people prefer to use another family member or respected member of the community as a mediator. I think it is best to use the services of a trained mediator, to ensure the process is fair to both parties and that the mediator is not running his or her own agenda. It will also give you the best chance of reaching a workable agreement. In the Family Law system, if you disagree about arrangements for your children. you generally have to attempt to resolve your differences via mediation (called “Family Dispute Resolution”) before you can go to court.
In financial or property matters, you may want to have your lawyer or accountant either with you or available to give advice by telephone, as part of the mediation.
Family or Relationship Counselling
If you are unable to reach agreement, typically about parenting arrangements, because of poor communication or ongoing problems with one or more family members, family counselling may be useful. This addresses the ongoing dynamics that may be causing the problems and looks at how family members can change their behaviours in order to reduce conflict.
Round Table (“Without Prejudice”) Discussions / Conferences
This is often used if parties are contemplating going to court, or where court proceedings have been issued. Therefore, such conferences are best conducted with the parties and their lawyers all present. It might be useful to have other experts involved with the case (for example accountants, valuers or counsellors) available at short notice. Usually these conferences involve both sides disclosing their evidence and negotiating to see whether there is a compromise position that they can reach. They are usually “without prejudice” which means that parties can make suggestions and explore options in the conference which, if they still can’t reach agreement, cannot then be disclosed in Court.
Negotiations throughout Litigation
In most cases, even where court proceedings have been issued, there will be on-going negotiations to see whether the case can be settled. The most notorious / famous type of such negotiations (at least for lawyers) is what’s called “at the door of the court”. This is when, in Family Law, all of the evidence is available to both parties and they are literally ready to go into court to have their case heard. It’s amazing to me, after over 25 years experience as a lawyer, how people will decide to settle at the last minute, rather than have to go into the witness box and be cross examined! Often when the same settlement could have been reached months and thousands of dollars before!
Making it stick
Once you’ve reached agreement, it is still important to have that agreement set out in writing and in a legally binding form. In Family Law, we commonly do this via a mechanism called “consent orders”. I explain this as the papers going to court but you don’t. The lawyers draft up the agreement in the format of a court order, (called “minutes of consent”). Both parties sign the document, then it is presented to the court, either “in chambers” with written reasons to the Judge as to why the orders should be made or in open court where one or both of the lawyers will explain the orders to the Judge. Provided the Judge doesn’t require any significant changes, the MInutes then become Orders of the court and are legally binding on the parties.
Of course every family law case is different, so you should discuss your options with your lawyer.
These last two posts have been about processes – the “how” you deal with the decisions that can arise when your relationship breaks up. Next time, I’ll talk a bit about the law itself – the “what”.
By John Smith posted July 30, 2015