As family lawyers, we often get asked if Court is the only option after separation. Unfortunately, there is a misconception that if a relationship breaks down the only way to sort things out is to involve the Family Court.
In fact, the opposite is true. In relation to parenting matters (previously known as “custody
disputes”), separated parents are often better able to work out what arrangements are best for their children. In many cases, parents are able to work this out without the intervention of the court.
In any event, if an agreement is not possible between the two parents, the law requires parents to attend mediation (except in rare circumstances, such as where family violence is a factor) before asking the Court to get involved.
In relation to property matters (division of family assets), even if a Court process is commenced, the Court generally requires mediation as the first step in the process. Without going anywhere near the Court, there are a number of options available to parents, couples and families wishing to reach an amicable agreement about their family law matter. These include:
1. Mediation without lawyers: Numerous organisations provide this service, (many for free), and this can be a great way to engage with your former partner and (with the assistance of a mediator), come up with a draft agreement.
2. Collaborative law: An interest-based process where each partner is represented by a collaborative lawyer. Both parties agree not to go to Court, but to work out an agreed outcome.
3. Mediation with legal assistance (also known as conciliation or facilitation): The mediator is often a senior family lawyer, or barrister (or sometimes a retired judge or Court Registrar), who is able to give their input to help reach an appropriate solution. Parties negotiate with the view to reaching an agreement.
4. Negotiation between lawyers: If you do not feel comfortable negotiating with your former partner, a lawyer can assist with this process. If you are comfortable, a round table conference with everyone involved might be a good way to iron out any issues you have.
There are always ways of doing things differently and without involving the Court, which allows the family to agree upon an outcome that works best for them, rather than having an outcome imposed upon them. It also allows the parents to consider options which are outside what a Court would Order, which may be better suited to the family’s particular circumstances.