Separating Without Going to Court

by | Feb 5, 2021 | General Legal Advice, Family Law Advice

“Divorce is one of the most financially traumatic things you can go through. Money spent on getting mad or getting even is money wasted.”

– Richard Wagner –

Relationship breakdowns can be emotionally and financially traumatic, especially when there are children involved. One of the first things we often hear from clients facing separation is “Will I have to go to court?” and the answer is “Not if we can help it!”

Australia’s family law system encourages people to agree on arrangements without going to court. In fact, if you and your former partner are in a dispute about children and property, Australian law requires you to make a genuine effort to try to resolve those issues through family dispute resolution (‘FDR’).

Why avoid the courts?

Using counselling, mediation and negotiation, it’s been shown that as little as 5% of cases require a final hearing in a family law court. There are many advantages of avoiding court:

  • You may be able to move on and come to terms with the situation sooner
  • Reduced financial cost
  • Empowerment to make your own decisions rather than having a court decide for you
  • Maintaining or improving communication with your former partner

What does Family Dispute Resolution involve?

Family dispute resolution is a practical way for separating families to try to resolve any disagreements and make arrangements for the future.

The law requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for an order in relation to a child.

FDR practitioners aren’t there to give legal advice but to help you and your former partner discuss the issues, assess options, provide you with information about parenting plans and help you to reach an agreement.

A typical mediation may include:

  • An opening statement by the mediator
  • Statements by you and your former partner
  • Agenda setting and issue identification
  • Negotiation and private meetings with the mediator
  • Determination of an outcome or resolution

Because you and your former partner are the focus of this process, your lawyer takes a back seat and plays a support role, providing information and giving you advice. They will help you develop options and draft settlements, but not be an ‘advocate’ as they would in a courtroom.

If you and your former partner can’t reach a solution concerning the children through dispute resolution, the FDR practitioner will issue what is called a ‘60I Certificate’ which will allow you to apply to the court for orders concerning parenting. A certificate is not needed if you are only seeking property orders.

It’s important to note that mediation is often not appropriate in cases that involve child abuse or family violence. You should seek legal advice in these instances as these cases are regarded as exceptions to the FDR requirement as clients moving from a relationship involving violence need care and support, and an experienced family law practitioner.

How a lawyer can help

A good family lawyer will help you understand your rights and responsibilities and avoid confusion about the informal and formal procedures you can follow.

The role of the lawyer is to provide you with information, identify your options and potential outcomes, and help you to resolve the matters between you and your former partner. Though some court applications may need to be made urgently, issues can often be resolved by consent through well-positioned and considered negotiations.

For more information, download our booklet Family Matters: A Practical Guide to Family Law

Want to talk?

Sydney Law Group is an experienced team of family lawyers who are passionate about achieving the best possible legal results for our clients. We exist to help you through this difficult time and to guide you to a positive outcome without extra emotional or financial stress. We’re on your side, every step of the way.