Tips on reaching a settlement (without litigation)

While the Family Court and the Federal Circuit Court (the Family Courts) have the job of ruling on disputes concerning property and children, they should be viewed only as a last resort for the vast majority of separating couples.

One Federal Circuit judge frequently advises the people appearing before him that “the Family Courts don’t do happiness”. In the end, in this jurisdiction there are no clear winners.

Streeterlaw’s Simone Green, an Accredited Specialist in Family Law, said with the right advice and assistance, it is possible to achieve an out-of-court settlement in the vast majority of cases.

“In my experience, people are generally more accepting of an outcome that they have reached by negotiation than a judgment of the Family Courts, which takes the decision completely out of their hands,” she said.

Here are some suggestions on how to reach a settlement between you and your former spouse:

1. Talk: Where possible, speak with your former partner about what each of you want. There may be issues that you do agree upon, which helps narrow the issues in dispute. Part of this process in a property matter is to identify all property and liabilities in your respective names and make full disclosure of this. Where you disagree as to values of real estate for instance, obtain valuations.
2. Engage a lawyer: Yes, this seems at odds with the very idea of a negotiated settlement, but choosing a lawyer with a focus on settlement can save you time and money in the long run, particularly if your former partner also chooses a lawyer dedicated to settling the matter in the best interests of the parties.
3. Mediate: Attend mediation with an accredited mediator to address any remaining issues in dispute. In children’s matters, mediation, or at least the attempt to mediate, is a pre-requisite to filing an application for a judicial determination in court of the issue. No such requirement exists for property applications, however. With larger asset pools, it is beneficial to engage in lawyer-assisted mediation, as your lawyer is on site to advise you of the potential outcomes and to formulate offers.

Below are the various methods you will need to consider when formalising a settlement

1. Parenting plan:  For children’s matters, a mediator or lawyer can assist you to formalise the agreement reached into a Parenting Plan. This is a written agreement signed by both parties setting out the day-to-day arrangements for the children and may cover such things as who the children live with, spend time with, decision making, education, health, and any other issues concerning the children. These documents can be amended by agreement from time-to-time as the need arises, but they are not enforceable.
2. Consent orders: An application for Consent Orders can be made to the Family Court of Australia in children’s matters and property matters. It is advisable to have the orders drawn up by your solicitor to ensure that the proposed orders are adequate and enforceable. An application for Consent Orders sets out all the relevant facts and/or figures to allow a Registrar of the Court to make a decision on whether the proposed orders are just and equitable. If the Registrar is satisfied by the proposed orders, the orders are made and sealed and posted to the parties. It is not necessary for the parties to ever appear in court and the end product is a Court Order, which is just as enforceable as if delivered
   by a judge following a contested hearing – but much quicker and cheaper.
3. Financial agreements: Your agreement can also be legally documented in a Financial Agreement. This is a private contract, which requires strict compliance with the requirements of the Family Law Act 1975. These agreements require each party to have instructed a separate lawyer for the provision of independent legal advice. Due to the extra legislative requirements, Financial Agreements are generally more expensive than a settlement reached by way of a Consent Order. Provided that the Agreement is correctly drafted, however, they may be enforced in the Courts and can provide for stamp duty relief when transferring property between spouse parties. Children’s matters cannot be dealt with in a Financial Agreement.
4. Child support agreements: You can also make a private agreement in respect to child support obligations with either a Binding or Limited Child Support Agreement, which can be registered with the Department of Human Services (formerly the Child Support Agency). These agreements can encompass periodic payments of child support and lump sum child support, in addition to non-periodic child support payments such as school fees and health care. The Department of Human Services will enforce periodic payments set out in a Registered Child Support Agreement.

If you would like further help or advice about formalising a settlement with your former spouse, please contact the Family Law experts at Streeterlaw on 8197 0105 or email advice@streeterlaw.com.au.