SEPARATION AND DIVORCE

Many couples separate and will agree on what they wish to happen in relation to a distribution of the asset pool (such as a property settlement) and if there are children to consider, the arrangements they wish to put in place for the children’s future.

When couples are in agreement the options for formalising the property settlement and arrangements for the children are:

• Consent Orders
• Parenting Plans
• Financial Agreements

These options are discussed in more detail under the children and financial issues sections of our website.

WHAT HAPPENS IF COUPLES ARE UNABLE TO AGREE ON FINANCIAL AND CHILDREN’S ISSUES?

There are a number of ways to resolve differences after a relationship has broken down.

• Counseling
• Collaborative Practice
• Mediation
• Family Law Litigation

1. Counseling

Counselors can help you to work through problems after the breakup. You can find qualified counselors in private practices, as well as in government and community-based organisations.

Counseling works best if you and your partner attend sessions of your own free will. However, if you and your partner go to the Family Court, you may be ordered to attend Counselling before a decision is made by the Court.

If Counselling does not prevent your relationship from breaking down it can still help with resolving emotional issues that result from the Divorce. It is a good idea to shop around to find a counselor with whom you feel comfortable and confident.

2. COLLABORATIVE PRACTICE – THE NEW ALTERNATIVE TO LITIGATION

Collaborative practice is a popular dispute-resolution method developed in the United States in the early 1990s. It has gained rapid popularity in the United States, the United Kingdom, and Canada. Now Collaborative practice is available to help people in Australia.

Benefits of Collaborative Practice

• You have the benefit of being advised and supported by your lawyer at all times.
• The outcomes are generally faster than traditional negotiation methods and most certainly quicker than court outcomes.
• The outcomes are certain and long-lasting because they are owned by you as you assisted in creating the outcomes.
• The process promotes cooperation in the future, particularly where long-term investments are involved.
• Resolutions are reached in a dignified and respectful way.
• The outcomes are often tailor-made and more creative providing fairer settlements.

The collaborative practice may be suitable for you and your partner if both of you:

• Wish to spare your children from the emotional damage litigation can cause.
• Accept personal responsibility in moving forward and reaching an agreement.
• Believe it is important to create healthy and more holistic solutions for your future.
• Understand and embrace the necessity to make full and frank disclosure about financial issues.

The collaborative practice may not be suitable for you and your partner if either of you:

• Have a primary aim to seek revenge against your former spouse or partner.
• Are looking for a “soft option”.
• Believe the procedure will pressure your spouse or partner to agree to your wishes.
• Want to avoid giving certain financial information to your spouse or partner?
• Where your relationship has experienced domestic violence or any form of abuse. If this is the case, the lawyers will first have to determine whether Collaborative practice is appropriate. It may be that other professionals are required to be involved to assist and support you through the process and to ensure that your interests are promoted and protected.

Make your own decisions

The Collaborative approach will enable you and your partner to resolve your issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved. In the Collaborative Practice process, emphasis is placed on reaching an agreement, rather than having to ‘battle it out in Court’.

Commitment to the non-confrontational dispute resolution

In the Collaborative practice, you will be asked to sign a Participation Agreement so that you demonstrate your commitment to resolving your differences with your partner in a respectful manner, with full and frank disclosure of information and with a minimum of conflict. Open communication will build an environment of trust. This trust will help you, your partner, and both of your lawyers to work together in finding workable solutions to your dispute.

In Collaborative practice, you and your partner, and your lawyers will work together to share information and arrive at solutions through a series of meetings. Your lawyer will never negotiate deals without your active participation. A major benefit of Collaborative practice is that you and your partner can each contribute to the compromised agreements that you make together, instead of having to settle with a decision imposed upon you by the Court.

Total ‘out-of-court’ settlement with Collaborative practice

At the commencement of the collaborative process, all parties and their lawyers will enter into a Participation Agreement. Pursuant to the terms of the Participation Agreement, the parties agree that they will not litigate their matter in the Family Court. This means that if either you or your partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process they will only be able to refer you to another trusted practitioner to handle your Court case.

How does it all work?

Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your partner, with an emphasis on retaining your dignity and best interests.

You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your partner because you and your partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.

The integrated approach of Collaborative practice

Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counselors, and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your partner with security and direction.

Note: In Collaborative practice, your lawyer and your partner’s lawyer will draft your agreement in legal terms.

3. MEDIATION

What is Mediation?

Mediation is a voluntary process (however, the Family Court may order that you and your partner participate in mediation, depending on your circumstances. Only you, your partner, and the Mediator will be part of the Mediation process. Depending on the level of conflict and personal dynamics of the relationship between you and your partner two Mediators may be necessary.

If the Family Court orders mediation or you and your partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your partner so that you can have open discussions and negotiate a settlement.

4. Family Law Litigation

Family Law exists to deal with legal issues resulting from Divorce. Our Director Ian Field is a highly experienced and fully accredited Family Law Specialist. Family Lawyers Mackay can provide you with advice that will empower you with knowledge of your legal rights and obligations following the end of your relationship. Our advice to you can also assist you in negotiating a settlement with your partner because you will have better knowledge of how to effectively deal with your partner’s needs and requests.

The Family Court of Australia (soon to merge with the Federal Circuit Court in 2019)

The Family Court of Australia is the final resource available to you to reach settlements on issues in dispute. The Family Court is conscious of the expense involved in resolving issues and the emotional turmoil that is normally associated with the breakdown of a relationship. The Family Court will make orders on matters requiring urgent attention.

Financial issues relating to marriages can be brought before the Family Court:

• At any time after separation; and
• Up to 12 months (1 year) after the granting of the divorce.

Financial issues relating to de facto relationships can be brought before the Family Court within a period of 24 months (2 years) after a separation of the relationship.

Parties who wish to make an application in relation to children’s issues (other than an Application for Consent Orders) must first participate in family dispute resolution in an attempt to resolve the care arrangements in relation to children. A party must file a mediation/counseling certificate together with their application for children’s orders unless one of the following circumstances apply:

• The matter is urgent;
• One or both parties are unable to participate in family dispute resolution;
• There has been or is a risk of family violence by one party of the parties; and
• There is a risk of abuse of a child/children by one of the parties.

The Federal Circuit Court

The Federal Circuit Court offers a Court system parallel to the Family Court. This Court also has other federal jurisdiction, including bankruptcy. It combines its federal jurisdiction with family law matters

The purpose of the Federal Circuit Court is to provide a faster, less expensive, and less complex option for litigants and also to ease the workload of the Family Court. This allows the Family Court to focus on complicated matters that require the attention of a Superior Court Judge.

The use of conciliation counseling and mediation will be strongly encouraged in appropriate cases, using both community-based counseling and mediation and Family Court services.

The Federal Circuit Court shares its jurisdiction with the Family Court and the Federal Court. The Federal Circuit Court legislation includes provisions that enable the Federal Circuit to develop procedures that are simple and as efficient as possible, including the power to make rules to set time limits for witnesses and to limit the length of both written and oral submissions.

Costs of Proceedings in the Family Court or the Federal Circuit Court

Normally, each party pays its own costs associated with the Court proceedings. In some instances, a party may seek a ‘Costs Order’ against the other party in their application brought before the Court.  The Courts do have the discretion to award costs against the other party in certain circumstances.

Costs may be awarded where the proceedings that have been instituted are frivolous or for some other reason the party was unreasonable in opposing or bringing applications. Costs are awarded on the actual work relating to the Court proceedings and are based on the Family Court scale, at the discretion of the Court, or on an indemnity basis.

Fact: An overwhelming majority of cases are resolved by agreement between parties and historically, only 4% of matters in the Family Court have required a judicial decision.

Marriages Families and Separation factsheet

Link to the Queensland Collaborative Law website

http://qcl.org.au/