Property & Parenting
Although mediation is not compulsory in property disputes (other than after Court proceedings have commenced), it should be considered before Court action is commenced.
Settlement negotiations may also take place by way of a round table conference, where the parties and their Solicitors have direct upfront negotiations with each other.
It is very important to obtain information and advice from an experienced family lawyer early in the settlement dispute and often it is recommended advice be received prior to or immediately following separation.
Significant costs may be incurred by a party in an attempt to settle or negotiate a matter where the other party is not responding to those actions. An experienced family lawyer will advise you when to stop attempted settlement discussions and when to commence Court action. Some people and some matters only respond to litigation. This is very unfortunate, however it is far better to learn this sooner rather than later.
If an agreement is reached between former spouses prior to or during Court action, consent orders would usually be prepared by one of the Solicitors. The consent orders are signed by the parties and their Solicitors and lodged with the Court. The Judge (or Magistrate in the Local Court) will make orders in chambers without the need for a Court appearance. The Judge, however must be satisfied the consent orders are properly drafted and represent a fair and equitable resolution of the matter.
Sometimes if parties reach an agreement without Court proceedings being commenced their Solicitor may recommend they formalise the agreement in writing by way of a Binding Financial Agreement (“BFA”) rather than consent orders.
There are stamp duty savings on the transfer of real estate and personal items between the parties where settlement has taken place by way of consent orders or BFA.
In a contested property matter which is progressing through the Court stages, mediation is ordered by the Court to take place. This may occur by way of one of the Court’s Registrars’ conducting a Conciliation Certificate or by an approved private mediator conducting external mediation.
As with contested parenting matters, legal costs and delays in litigated property cases are significant. When considering settlement of a property matter a party must always take into account the costs they have incurred to date and the costs of progressing the matter further by Court action. Making settlement decisions is like making a business decision. Continuing with Court action because “of the principle of the matter” is usually a very expensive and ultimately unrewarding experience.
Parenting issues can cause distress and heartache to parents and their children. It is important to recognise and respond to parenting problems as soon as possible.
Mediation is now compulsory in parenting matters. Parties must attempt mediation before they can commence Court proceedings. There are exceptions to compulsory mediation in circumstances of urgency and or family violence.
Mediation is offered by private individuals and community based organisations (for example Interrelate and Relationships Australia).
If parenting arrangements are agreed at mediation, your Solicitor can then prepare a Parenting Plan or consent documents to obtain consent orders from the Court.
If the matter remains unresolved after mediation is attempted, the Mediator will issue a section 60 I certificate. This is a certificate referred to in section 60 I of the Family Law Act, 1975. The issue of the certificate then allows a party to commence Court action to obtain parenting orders.
Sometimes in parenting Court proceedings the Court will appoint an Independent Children’s Lawyer (“ICL”). This is a Solicitor appointed to represent the interests of the children. The ICL’s legal costs are met by Legal Aid NSW, although the Court can in some circumstances, order the parties to contribute to the costs of the ICL.
The Court may also order the preparation of a Family Report (prepared by one of the Court’s Family Consultants) or a Report by an expert psychiatrist or psychologist.
Parenting Court proceedings may take up to two (2) years (sometimes more) to be determined by the Court on a final basis. Parties are encouraged throughout the process to reach an agreement to ensure their children’s best interests are served and the impact of the Court process and parents conflict is lessened as much as possible.
Often drug use, mental health issues and domestic violence are present in contested parenting matters. These additional elements to the matter need specific attention. Realistic, honest and empathetic advice and representation is required.