Separation is hard. Even when the parties are getting along and there are no children, decisions still need to be made. The challenges include:
- Whether one party should move out and if so, who.
- How rates and insurance are going to be paid.
- Whether to continue using a joint account.
- Whether the family home should be sold or retained by one of the parties.
- How all this is going to be paid for.
The process can become even more complicated when children are involved, especially if there is a dispute about who the children should live with or if one party is withholding access from the other.
Often there is no easy compromise, and navigating through all this uncertainty can be like trying to cross a mine field without a map.
This guide to family law in Australia aims to serve as your compass, detailing the essential steps and considerations in the family law process to help you find your way with confidence.
Table of Contents
Step 1: The Initial Consultation & How to Get the Most Out Of It
The Importance of Early Advice
- Early advice minimises uncertainty and prevents disputes from escalating.
- It equips you with knowledge to make informed decisions and foster productive interactions with your ex-partner, potentially saving you both financial and emotional distress.
Maximising Your Consultation at BWJ Law
BWJ Law offers a discounted initial consultation of up to 60 minutes. During this time, we focus on:
- Understanding Your Circumstances and Priorities: A thorough discussion of your background and concerns to pinpoint critical issues.
- Legal Guidance: Explanation of relevant laws and how they apply to your situation.
- Identifying Solutions: We propose viable solutions and provide direction for the next steps.
It is our goal to ensure you leave the consultation with an understanding of your rights and options, and a plan for the future that is tailored to your specific needs.
Preparing for Your Consultation
To make the most of your time, preparation is key:
For Property Matters
- Bring a list of assets and liabilities for both parties, including superannuation, with current values (estimates are acceptable).
- Provide information on wealth brought into the relationship, significant financial events, and details of any gifts or inheritances.
- Share details on each party’s income earning capacity and any impacting factors like health or parenting responsibilities.
For Parenting Matters
- Prepare a list of questions prioritised by importance.
- Create a timeline of significant incidents affecting parenting, like domestic violence incidents or hospital admissions.
- Bring a copy of any relevant documents such as domestic violence or family law orders, parenting plans, or police statements.
- Consider your ideal parenting arrangement, taking into account practical and safety concerns.
The Benefit of Preparation
Arriving prepared allows us to dedicate more time to offering tailored advice and exploring solutions, and enhances the accuracy and quality of our guidance. This preparation empowers you to move forward with greater confidence in your legal journey.
Step 2: Information Gathering
Especially in property matters, it is impossible for any lawyer to give reliable and accurate advice without knowing all the details about the relevant asset pool and each party’s financial circumstances.
Any settlement made on the basis of advice given without that information is at risk of being unfair and possibly being set aside or disregarded by the Courts.
Similarly, there is no point exchanging offers if neither side has enough information to know whether or not the offer is a good one. For this reason, the exchange of relevant information is a necessary and important part of any family law negotiation.
Obligation of Disclosure Under the Family Law Act
To make sure that each party has all the necessary information, the Family Law Act imposes an obligation on each person involved in a family law dispute to provide full and frank disclosure of all relevant information to the other.
The process of exchanging such information is often simply called ‘providing disclosure’.
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In Parenting Cases:
Providing disclosure means giving the other side any information and evidence that could inform a decision about what is in the child’s best interests.
There is no defined list of relevant information, but examples include medical reports about a child or parent, school reports, statements to police, reports from child safety authorities, letters and diaries.
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In Property Matters:
The obligation means disclosing all sources of income, property, and other financial resources.
This applies whether the property, financial resources and/or earnings are owned by or come to the party directly or go to some other person or beneficiary (for example, the party’s child or de facto partner).
It includes earnings and assets held by companies and trusts, especially if a party has control over that company/trust.
There is also an obligation to disclose the disposal of property, whether by sale or gift, in the year immediately before separation or since separation has taken place.
Clarifying Disputes and Agreements
Especially in parenting cases, this stage often involves writing to the other party to raise any concerns and invite the other side to respond to them.
The letter might also include a list of relevant facts and/or a history of the events leading up to the dispute, along with an invitation to the other side to respond.
This provides an opportunity to identify which facts are agreed and which are not. Having that information tell us whether you need to obtain more evidence, and if so, what that evidence might be.
It also provides an opportunity to resolve points in dispute early, for example, by jointly appointing an expert to provide evidence about a child’s development, or the value of the former matrimonial home.
Finalising Asset and Liability Values (property matters)
Once the process is completed, the parties will typically have identified and agreed upon the value of all their relevant assets and liabilities, which will be set out in a table which is often called a ‘schedule of assets and liabilities’.
By the end of the information gathering stage, the parties are usually in a position to engage in meaningful negotiations and try to settle the matter outside of court.
Reducing Legal Fees Through Preparedness
One of the simplest and most effective ways to mitigate your legal fees is to comply with the obligation of disclosure and if possible, agree upon a schedule of assets and liabilities with your ex, before engaging lawyers.
This reduces the amount of administrative work your lawyers need to undertake on your behalf, improves the quality of advice you get early on in the case, and allows you to focus your legal budget on negotiations rather than exchanging financial records.
In some cases, especially where there has been family violence, it may not be possible to have such discussions without legal support.
If you find yourself in that situation then we will assist you through the process and handle all communications with the other side so you don’t have to.
You can still reduce your fees by making sure you neatly organise and label your own disclosure material, before passing it on to your lawyer.
Step 3 – Negotiations
Negotiations in family law tend to follow a standard process set out in detail in “the Pre-Action Procedures”, which lay out the steps each party is obligated to take before commencing proceedings in Court.
Pre-Action Procedures – General Expectations
There are slight differences between the pre-action procedures for parenting matters and for property matters, however one thing they have in common is a firm expectation that parties will make a genuine effort to reach agreement before taking a matter to Court.
This involves complying with the duty of disclosure, attending mediation, and exchanging genuine offers of compromise.
Initial Negotiations by correspondence and phone
Negotiations will usually open with one party making an offer of settlement in writing to the other.
Sometimes it is important to justify the offer by referring any relevant evidence and supporting legal principals, but this extra work can be avoided in cases where the parties agree on the relevant background and history,
Once each party has made their position clear, the lawyers will often have a conversation over the phone to identify common ground and ‘sound out’ possible solutions.
This can be an effective way at reducing the need for written correspondence which saves time and money for both parties.
If agreement is reached at this stage then the parties may save significant legal fees by avoiding the need to attend mediation.
However, it is also important to have a clear idea of how much time and money you are willing to commit to negotiations via correspondence since the fees can quickly add up and a ‘war of letters’ is rarely an effective way at reaching agreement.
Negotiations via mediation
If attempts to negotiate directly with the other side by phone or correspondence have failed, then the next step is to attend mediation with a suitably qualified Family Dispute Resolution Practitioner (a mediator).
The mediator is an independent third party who is jointly appointed by the parties to help them reach an agreement.
Mediation is a proven and reliable method of resolving disputes, and the role of a mediator in assisting the parties to overcome communication barriers and to identify and agree upon possible solutions is invaluable.
In some cases, you may be able to have an effective mediation without your lawyer present. In such cases we will be available to you throughout the day for advice.
Formal Notice Before Court Proceedings
- a genuine offer of compromise,
- notice of the orders that the person intends to apply for if the offer is refused,
- a list of issues for determination by the Court, and
- a time frame by which the other side must respond (usually at least 14 days)
Exceptions to Pre-Action Procedures
There are some exceptions to the obligation to comply with the pre-action procedures, for example in cases of genuine urgency, or where there is a history of family violence.
That said, there are also serious consequences for not complying without a reasonable excuse. For this reason, you should always get advice and think carefully about commencing proceedings in Court before having complied with the pre-action procedures.
Costs and Complexity in Negotiations
The costs associated with negotiating a family law matter and working through the pre-action procedures depends greatly on the complexity of the matter and how many issues there are in dispute.
Often, people are able to reach agreement after exchanging one or two offers of settlement, in which case there may not be any need to attend mediation.
Stage 4 – Finalising an Out-of-Court Settlement
If agreement is reached at any stage of a case before it ends up in Court, then the next step is to formalise the bargain.
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In Property Matters:
An agreement can be formalised by either entering into a Binding Financial Agreement (“BFA”), or by making a Joint Application to Court for Consent Orders.
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In Parenting Matters:
An agreement can be formalised via a Parenting Plan or via a Joint Application to Court for Consent Orders.
Binding Financial Agreements
- Binding Financial Agreements are a form of deed or contract, which is binding upon the parties and has the effect of preventing either one of them from applying to Court for a property settlement.
- There are strict rules relating to the form and content of a BFA as well as obligations requiring parties to obtain independent legal advice before entering into one.
- If not done properly, a BFA can be set aside by the Court.
- They are often seen as less secure than Consent Orders, and they are also often more expensive too.
- People tend to use BFAs where the agreement they’ve reached is not one that the Court would be likely to approve.
Consent Orders
- An Application for Consent Orders involves jointly asking the Court to make binding orders in terms that have been agreed upon by the parties.
- These orders can relate to children, property, or both, but they cannot relate to child support.
- The process of obtaining consent orders involves filing an “Application for Consent Orders” alongside a Minute of Orders sought.
- The Application for Consent Orders provides the court with the information needed to decide whether or not to make the orders the parties are asking for.
- In financial matters, this means providing information to the Court about all the assets and liabilities and the contributions and future needs of each party.
- In parenting cases, the parties also need to file a Notice of Child Abuse, Family Violence and Risk.
- Once the documents have been filed, a member of the Court will consider the relevant information and decide whether or not to make the orders sought by the parties.
- If the information is missing important details or the court does not think the orders are appropriate, then the Application may either be refused or requisitioned.
Parenting Plans
- Parenting Plans are written agreements between parents about issues concerning their children.
- To be recognised, they need to be signed by both parents, dated, and labelled as a parenting plan, but are otherwise very flexible and can easily updated and amended.
- Unlike consent orders, parenting plans are not legally enforceable, although they are still important documents and parties are expected to comply with them unless there is a good reason not to.
- Parenting plans have the benefit of being simple and cost effective compared to consent orders, and they because they are not legally binding and are easier to update, they do not have to be as well drafted and comprehensive as consent orders.
In contrast, Consent Orders tend to be very rigid and can be hard to amend. For this reason, Parenting Plans are often preferred.
Step 5 – Litigation
Finally, if all else fails, or in particularly urgent cases, the next step toward resolution of a family law dispute is to commence proceedings in Court.
Getting into Court involves drafting a variety of complicated documents, but the most important ones set out the Orders you are asking the Court to make (on both a temporary and a final basis), and the evidence that are you relying upon.
It is critically important to ensure that these documents are properly prepared since failing to do so can cause long-term damage to your case.
Case Management by Judicial Registrar
Once a case is brought to the Court, a Judicial Registrar will ‘case manage’ the proceedings.
This usually involves making any orders necessary to deal with outstanding disclosure issues, and making sure each party has filed the right paperwork so that each person knows what evidence the other side is going to rely on and what their arguments are going to be.
In parenting cases, it also involves obtaining a report from an independent expert who will speak with the children (if appropriate) as well as the parties, and who will make recommendations about what might be in the child’s best interests.
Interim Hearings
Sometimes there is an issue that is so urgent it needs to be decided on before a case is ready for final determination.
Examples include cases where a child is being denied a relationship with one of their parents, or where a property needs to be sold to avoid foreclosure.
Hearings about these types of issues are called ‘interim hearings’.
Final Steps and Trial
Once all the necessary reports and evidence has been obtained, the Court will usually direct the parties to have a final attempt at mediation and if there is still no agreement after that, then the matter be set down for a trial.
At the trial, the witnesses will be asked questions by the other’s lawyer (a process called cross-examination), and a Judge will decide what orders to make based on the answers to those questions alongside all the other evidence and each party’s arguments.
Finalizing Agreements Before Trial
If agreement is reached before trial, then the parties can ask the Court to make final orders by consent. This usually involves giving the Court an agreed upon set of orders along with a letter to the Court explaining why the Court should make the orders the parties have agreed on.
Reach Out to BWJ Law for Expert Family Law Support
Navigating family law matters can be complex and emotionally challenging.
At BWJ Law, we specialise in providing expert legal guidance and support through every step of the process, from initial consultations to negotiations and, if necessary, litigation.
Our experienced family lawyers are committed to helping you achieve the best possible outcome with compassion and understanding.
For tailored advice and representation in your family law case, contact BWJ Law today.
