It is common for individuals to be anxious about what lay ahead in finding resolution to their family law challenges. The emotional element already makes this a confronting time but so to does fear of the unknown. It’s for this reason we have mapped out your pathway to resolution.
Your Resolution Pathway aims to demystify the process of resolving your family law challenges, including the court processes. Unfortunately, depending on your individual circumstances, the pathway is not always a linear process and sometimes can involve repeating individual steps. But after working through the pathway you will have greater understanding about what’s involved.
As your family law experts, our aim is to guide you through your individual resolution pathway in the way which will deliver you the best outcome, in the shortest possible time and with as little intervention (courts, lawyers and otherwise) as possible.
We know your best life is ahead of you.
The first step in Your Resolution Pathway is for you to book a time to meet with one of our Family Law experts for an initial consultation. The initial consultation is a great place to start for a couple of reasons.
You get to meet with your own family law expert. It’s important to understand this is not a one-off transaction, but a relationship. We’re going to be working together for some time and dealing with some fairly personal things. You need to feel comfortable with your lawyer and your team. You need to be able to trust us. We need to be able to trust you. This is essential in securing the best outcome for you.
You have an opportunity to tell us what’s been going on for you – what got you to this point, where you are now, and what you’re looking to achieve. We listen, ask plenty of questions, and begin to provide you with legal advice.
If you’re comfortable with everything to that point you will appoint us as your family lawyer and issue instructions to us.
Fact Finding & Disclosure
Once you have engaged us to help resolve the issues arising out of your separation and divorce the starting point is to determine the financial position of the relationship between you and your former partner, and where children are involved to ensure there is agreement around the care of them.
Each family dispute, we as your lawyer will deal with, will include either property and financial, children and parenting, or both.
For property and financial disputes there are two things we need to determine. Firstly, we need to establish the total assets and liabilities of your relationship with your former partner. This will include any financial contributions each of you made to the relationship. Secondly, we need to determine the current earnings (wages, business etc.) and living expenditures of each of you. This process is called ‘financial disclosure’ and necessitates the collation of all documentation in your possession which details your financial position.
Where children are involved, if you have not already reached agreement with your former partner on how the children are to be cared for you will need to go through a process called a ‘family dispute resolution’. A family dispute resolution is mediated by a third party mediator (not your lawyer) and is entirely focused on reaching agreement relating to the care of your children. An agreement reached here will include detail such as who the children live with, visitation rights, which school they attend, how the children will communicate with the other parent amongst other things.
Negotiation & Mediation
Following on from the fact finding and disclosure step it’s time to begin negotiating an outcome with your former partner. Whilst it is not always the case, it is most likely your former partner will have appointed a lawyer to represent them by this point.
Prior to commencing any negotiation, we will seek to agree the starting point with your former partners lawyer. Where the dispute relates to property it is worth noting that whilst some assets and liabilities are easy to identify and quantify, others are more subjective. Sometimes this is a straightforward exercise and at other times not so.
Once there is consensus on the value of the property and financials of the relationship it is important to capture the issues of each side.
Where children are involved and where agreement in respect of their care has not been reached through the family dispute resolution process both lawyers will attempt to negotiate an outcome suitable to you both.
For the purpose of clarity, property and children’s disputes are separate disputes and one cannot be used as leverage over the other. If negotiations between the lawyers are unsuccessful there a couple of options available to you. We can arrange a ‘roundtable’ conference which would include you, your former spouse, and respective lawyers in the same room attempting to negotiate an outcome. Alternatively, an external mediator can be appointed to resolve the dispute.
This is the last opportunity either of you have to resolve your differences before going to court.
If you have been unsuccessful in settling your dispute with your former spouse the next step is to commence proceedings. Either you or your former spouse can commence court proceedings so long as you do so within the appropriate time limits.
Should you wish to commence proceedings in the Court we will draft and submit your Application to the Court for Court Orders. This application effectively tells the Court what Orders you would like the Court to make. It will provide the Court with details of the assets and liabilities of the relationship, yours and your former partners current earnings and expenses, and where you have not reached agreement in respect of any children of the relationship, details of their needs.
In addition to the Application for Court Orders we will need to prepare and submit an affidavit to the Court for its’ consideration. An affidavit is simply a document prepared for the Court which sets out the evidence supporting your application.
Once received these documents, your application and affidavit, will be served on your former partner.
Your first Court appearance will be what is typically referred to as a ‘Directions Hearing’. In a Directions Hearing the Court will consider the nature of the dispute, be it property only, children only or a property and children dispute.
The purpose of the Directions Hearing is to make procedural Orders only. That means the Court will not decide the settlement terms of your dispute, but rather will consider the Applications for Orders received and determine the evidence to be prepared and submitted prior to either an interim or final hearing.
Think of it like the Court setting out your personalised roadmap to reach final settlement of your dispute with your former partner.
Usually a directions hearing will be heard before a Registrar of the Court and not a judge.
At a Directions Hearing it is likely the Court will order both you and your former partner to attempt to resolve your differences and settle your dispute before appearing again in Court.
Where there is a property and financial dispute before the Court, Orders will usually require you to attend a Conciliation Conference to agree on the terms of settlement. The Conciliation Conference will be facilitated by either a Registrar of the Court or by a Court determined external mediator. We will attend the Conciliation Conference with you to represent your best interests.
The aim of the Conciliation Conference is to resolve all property and financial issues and the Court typically allows 2 or more hours for agreement to be reached.
If there are children of the relationship you will also be required to undertake a Child Dispute Conference to resolve all parenting issues. This is a separate process to Conciliation Conference, though it is not unusual for informal discussions to be held at a Conciliation Conference which also touch on the children and parenting issues.
In a Child Dispute Conference only you and your former partner attend with the Family Consultant, who is appointed by the Court to identify all parenting issues and attempt to broker an agreement. Where the child is deemed to be appropriately mature (older children) the Court may order a Child Inclusive Conference where the child will also be in attendance.
If no agreement is reached at the Child Dispute Conference then both you and your former partner will be back in Court for a further Directions Hearing. In this case the Court will order a Family Report, which is an in-depth assessment of all issues the Court would need to consider.
If agreement cannot be reached in respect of either property or children, then it’s back to Court for hearing.
If, despite the attempts to reach agreement with your former spouse, you’ve been unable to settle your dispute then it’s off to Court one final time. This is the Final Hearing.
At a Final Hearing, the Judge will determine the final settlement terms of your dispute, and make Orders accordingly, based on the merits of your case and that of your former partner. Usually you will be represented at the hearing by your family lawyer and a barrister, and evidence will be subject to cross examination. This may require you give evidence, as well as family and friends, and others such as independent experts.
Hearings will last anywhere from one to two days in straightforward cases to a week or more for complex cases.
Following any hearing the Court will make Orders. Court Orders are legally enforceable.
At conclusion of the Final Hearing the Judge will issue Court Orders which define the terms of the final settlement of any dispute you have with your former partner in respect of property, financial and children’s matters.
The Orders will determine how assets and liabilities are to be dealt with, the terms of any ongoing financial commitments, what the parenting arrangements will be and the timeframes within which the Orders are to be fulfilled.
If court orders aren’t complied with it will be back to court, not to re plead your case but for Orders to be enforced.
If either you or your former partner breach the Orders there is the possibility of there being significant cost implications associated with the breach.
Once the Court has determined the settlement terms of your dispute our focus is to ensure Orders are complied with so you can get on with the rest of your life.
This may involve the transferring of title on property, superannuation funds, extinguishing liabilities such as the discharge of a mortgage, or even the physical exchange of certain items. It really depends on the individual nature of your financial affairs and the Court Orders.
Beyond that it is important you update any superannuation or insurance policies with the appropriate beneficiaries, make a new Will, make changes to the business structure if your former partner was involved previously and generally arrange your affairs so that you are completely independent of your former partner.
We’ll help you work through all of that, from start to finish, because your best life starts now.