Alternatives To Consider Before Going To The Family Court
Posted: 18th February 2019
Posted by: Fiona Browne, Associate
It is important to understand that Divorce is separate to the process of formalising care arrangements for your children and dividing your finances after you have separated from your spouse. You do not need to Divorce first, rather it is usually recommended that you proceed with Divorce only after parenting and financial issues have been finally resolved.
Couples who decide to separate do not necessarily have to go to Court to resolve disputes over finances and children. Rather families are encouraged to make arrangements for these matters themselves. If they can, separating couples avoid Family Court proceedings saving time, money and stress.
Here are four alternatives to consider before going to the Family Court:
Mediation, sometimes referred to as ‘Family Mediation’ or Family Dispute Resolution (FDR), is a forum to help separated families come to a mutual agreement. It is a way of resolving disputes between couples and families in conflict.
Mediation can be as informal as another family member or a neutral party facilitating it without any lawyers being involved. Or it can be as formal as having a retired Judge acting as Mediator with Solicitor and Barristers being present working to find solutions for the parties.
There are professional accredited FDR Practitioners – this type of Mediation is commonly known as FDR Counselling.
The objective of FDR is to assist participants to decide on arrangements relating to Family Law and is usually about children and their care arrangements, but can include issues related to finances such as child support, maintenance and division of assets including properties or superannuation.
Under the Australian Family Law Act, it is compulsory (with exemptions for some situations) for separated parents to attempt FDR before applying to a Family Court for parenting orders.
Mediation is a practical and low-cost option rather than going to Court.
2. Informal Agreements
In amicable separations, informal agreements may work. When separating families agree with all the arrangements made, and the possibility of turning against each other is very slim, a conversation can suffice. However, it is imperative to take note that informal agreements are NOT ENFORCEABLE BY COURT.
Even if you reach an agreement, it is almost always recommended that you formalise such agreement and you can do so without having to set foot inside a Court.
3. Consent Orders
A Consent Order is a written agreement drafted by a solicitor when both parties have reached an agreement on parenting, financial matters or property division. It is formalised to make it binding and is approved by the Court and has the same effect as a Court Order made after a Hearing.
More information: How to apply for Consent Orders
Arbitration in the simplest terms is a private trial. A form of dispute resolution outside the Courts. An arbitrator is an independent person or body officially appointed to settle a dispute. The chosen arbitrator is agreed upon by both parties. This means that lawyers in each camp have high confidence in these practitioners. It must be a joint decision.
The participants have each of their lawyers present their case during the process. Both parties must agree to participate in arbitration. One party’s preference to go to court supersedes the other partner’s choice to go to arbitration. It must be a joint decision.
Many Australians choose arbitration over a Court trial due to delays during Court proceedings. Parties can wait a lengthy period for the Court judgment, sometimes more than one year. Arbitration judgement is usually delivered within 14 days of the arbitration, and a registered award has the same effect as a Court Order.
Every separation is tough on both parties and may require you to participate in complex processes. If and when you decide that separation is final, it is best that both parties consider all other options before deciding to go through a long Court trial. Not only will this be less draining on your bank account, but you can also avoid the emotional stress that Court proceedings can bring.