New guidelines have been in place for a year for those who have separated and are negotiating family law (parenting and/or property) matters. However, its important to know the timeframes and steps involved.
Despite popular thought, most matters settle amicably after some negotiation without going to Court. Other matters do not.
Some matters settle after mediation and negotiation through the Court’s required pre-action pathway and of the remainder, most settle through formal Court appointed mediation.
Necessary pre-Court pathway
The Court now has mandatory guidelines that each case must follow before a party issues Court proceedings (with the exception of urgent cases or where there has been domestic violence). These preliminary steps seek to minimise the time, stress and cost of Court proceedings by:
→ Promoting early and full disclosure of information to help clarify the issues in BOTH family parenting and family property matters so everyone can make informed decisions
→Avoiding legal action by encouraging the parties to settle the disputes between themselves (if possible) in a civilised and amicable way (important if children are involved)
→Protecting parties by requiring independent legal advice is obtained to ensure that any final agreement is either ‘just and equitable’ in property matters or meets the ‘best interests of the child considerations’ under the Family Law Act without having to go all the way through a costly legal dispute.
→The parties have a say and can agree on matters that affect them.
STEP 1 – Attempt to negotiate the matter through lawyers or directly
- You must write to the other party advising that you wish to resolve the property and/or parenting matters and put your proposal to the other party setting out what you wish for. In property matters, you must provide actual primary-source evidence of your assets, income and liabilities. If there are allegations of domestic violence or abuse, we do not recommend that you participate in this process yourself but rather engage a lawyer to protect your rights or an intervention order being made.
- We have a handy factsheet on the types of documents that you need to provide.
- Getting these documents together may take time but if you do not provide them and they later become relevant, you may face an application for costs or your agreement overturned by a Court.
- Give the other party reasonable time to consider your letter (say, 21 days) to enable them to get their documents together and obtain legal advice.
- On receipt of your former partner’s documents, read them thoroughly and make sure that they accord with your understanding of the other party’s situation. Make sure that the other party has provided all documents.
- If all is in order, consider what the other party seeks in settlement. You may need financial or taxation advice if your situation is complex. If you are approaching retirement and there is a big difference in assets/super, we strongly recommend you seek financial advice.
- Try to negotiate with the other party. Make sure your responses are professional, sent at a reasonable hour and not excessive. If your matter does not settle, these documents may be produced to a Court so keep things polite, brief and professional.
- Put timelines on requests for information and responses to ensure you can follow up requests. Promptly respond to any requests made of you.
TIMEFRAME: 2-3 MONTHS (depending upon yours/other party’s ability to provide disclosure documents and the length of negotiations.
STEP 2 – Undertake Compulsory Family Dispute Resolution (Mediation)
- If you still cannot settle after a reasonable time for negotiations, you will need to attend an out of court mediation procedure facilitated by an independent and registered Family Dispute Resolution Practitioner (‘Practitioner’ or ‘FDRP’). At Rachel Storey & Associates, we are an accredited FDRP. You could also use a cost or low fee service such as Relationships Australia or a barrister who is trained as an FDRP.
- You must make a ‘genuine attempt’ to engage in mediation. You must provide all paperwork to the mediator prior to the mediation, answer any questions that they may have and so on.
- You should attend the mediation having regard to your best case and worst case scenario. If you are not sure, get legal, financial and/or taxation advice. Think of the arguments you would put and what arguments your former partner may put and what your response to them may be.
- Be prepared to compromise – you want a long term result here and to maintain a civil relationship with your ex partner, especially if children are involved.
- If successful, go to STEP 3.
- If unsuccessful, the mediator issues a ‘Genuine Dispute Certificate’ and you go to STEP 4.
TIMEFRAME ESTIMATE: depending upon the availability of a mediator 2-3 months
IF SUCCESSFUL, STEP 3 – Apply for Court Consent Orders or Parenting Orders
- You will need to write up the agreement so that it is a legally binding document. You may need legal advice to do this to ensure there are no traps (now or in the future) to secure your agreement
- You will need to obtain a certificate from a qualified independent legal practitioner to confirm that you have been advised of the advantages and disadvantages of making any agreement (either property or parenting).
- A Judicial Registrar will look at the proposed Orders and check that the orders are just and equitable in property matters, or, that the best interests of the child/ren have been provided for in parenting orders. They may have some questions which you will need to provide answers to promptly, or, they may Certify the Orders.
- After receiving the Court Certified Orders, congratulations! Your matter has resolved!
TIMEFRAME ESTIMATE: time to draft Orders, confirm agreement and file with the Court (1 month). Time Court has to consider proposed Orders (depends upon caseload of Court) (up to 2 months).
IF UNSUCCESSFUL, STEP 4a: Notice to other party/ies intention to go to Court
If you have been unsuccessful after mediation negotiations, you must send a formal Notice to the other party/ies of your intention to Commence Legal Proceedings.
In giving the written notice you must include:
- What the issue/s in dispute are
- What you are seeking
- An honest offer to resolve the issues
- When you expect a reply (at least 14 days after the letter has been received)
If no agreement is reached after the reply to the written notice, proceed to STEP 5
TIMEFRAME ESTIMATE: 1 MONTH
IF UNSUCCESSFUL, STEP 4b: You may receive a Notice from the other party/ies that they intend to issue Court proceedings
After receiving the notice, you must reply in writing within the time frame set out in the letter stating whether you accept or reject the offer
- If you reject the offer, your response needs to include:
- What the issue/is in dispute are
- What you are seeking
- An honest offer to resolve the issues
- When you expect a reply (has to be at least 14 days after the letter)
- If you accept the offer, proceed to STEP 2
- If you reject the offer, proceed to STEP 5
TIMEFRAME ESTIMATE: 1 MONTH
STEP 5: Proceeding to Court
- You will need to file an application to have the matter heard by Court. Remember you have two years from the date of your separation if you were in a de facto relationship or one year from the date you obtained your divorce (if you have obtained one and were married) to do this.
- Keep in mind if court proceedings are started the court will examine whether the pre-action procedures have been fulfilled and failure to do so may carry consequences, including costs against a non-compliant party.
- Even if your matter goes to Court, it may not be that it will proceed all the way to hearing. Keep an open mind, be reasonable and remain focused on the long term. In both property and parenting matters, the parties are again sent to Court ordered mediation at approximately the six month mark.
TIMEFRAME ESTIMATE: depending upon the complexity of your matter and Court availability – 1 to 2 years
In conclusion, there are a few hurdles that you may need guidance and advice to successfully complete the pre-Court procedures if your case does not settle, or, the obtaining of independent legal advice if you are able to achieve agreement.
At Rachel Storey & Associates, we help take the stress away and help you at every step of the way.
Please call us for an appointment on 03 9069 033.
We are open Monday to Friday, have zoom appointments and may meet out of hours to remain flexible to your needs.
Little disclaimer: Please note that this is general advice and you will need to obtain legal advice for your particular situation.
