The majority of family law matters are settled outside of Court. There are a number of steps that couples can take to resolve the legal aspects of their relationship breakdown amicably.
It is important for each party to obtain timely independent legal advice from a specialist family lawyer. Detailed legal advice will inform each party about:
a) the Court’s process for dealing with a family law dispute;
b) the principles that the Court will consider;
c) the kinds of facts that the Court will consider relevant or irrelevant;
d) the time and costs involved in litigation;
e) the likely outcome of a Trial; and
f) the alternatives to Court.
Legal advice will help the parties have realistic expectations, and therefore assist them to negotiate sensibly.
Alternative Dispute Resolution
The Family Court requires couples to attempt Alternative Dispute Resolution (ADR) before they are able to commence proceedings in Court in some circumstances, and in others to at least have attempted conferral. ADR is usually done by way of mediation, where the parties have an opportunity to discuss the issues in dispute with (or without) the support of their solicitors.
Relationship breakdowns are fraught with emotion. Each party should make their best efforts to be rational and reasonable when discussing the terms of a settlement. Removing emotion from the settlement discussions will increase the chances of reaching an agreement faster.
Even if the parties do not reach a complete agreement at mediation, they are likely to:
a) narrow the issues in dispute; and
b) get an idea of what the other party wants.
Provide Full and Frank Disclosure
Both parties to a family law matter are under a duty of disclosure; r 13.01 of the Family Court Rules 2004. This means that they must provide copies of all relevant information and documents to the other party. The earlier each party provides their disclosure, the faster the negotiations can move. A party’s prompt disclosure also demonstrates their willingness to engage in the process and cooperate with each other.
Make an Offer of Settlement
If a party makes a genuine offer to settle, then this demonstrates that the party is serious about settling outside of Court. The first offer of settlement also serves as a starting point for counter offers and further negotiation.
The parties should make every effort to compromise where possible. Firstly, the parties should agree upon the current values of the assets and liabilities of the relationship. This should be done as a matter of priority, as it is difficult to negotiate in a meaningful way without knowing the values of the assets and liabilities. If the parties cannot agree on the value of a particular asset, then they should obtain a joint appraisal or valuation.
While each party may want to keep specific assets, they should also be cautious that their legal costs in pursuing that asset do not exceed the value of the asset itself. It is not worth spending $20,000 in legal fees arguing over an asset worth only $10,000. For that reason, each party should be reasonable and flexible as to which assets they want to keep.
Best Interests of the Children
Above all, the parties should prioritise the best interests of their children. The children are entitled to have a meaningful relationship with both parents. The parties should consider the needs of the children and, in particular, the importance of a stable routine for the children.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.