Out of Court Settlements & Mediation

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At Emera Smith, our aim is to keep your matter out of the Court system and, wherever possible, to negotiate the terms of your separation. This reduces stress and anxiety, is often a faster process and also reduces costs. Reaching an out of Court settlement in family law matters can be done in a number of ways.

These include:

  • Direct negotiations with your former partner;
  • Lawyer assisted negotiations; and
  • Mediation – with or without lawyers.

Direct negotiations with your former partner

This might be a good option if you are on good terms with your former partner and it’s safe to have these discussions. These discussions can be tricky because emotions are usually involved but respectful and productive discussion are still possible.

If an agreement is reached, you simply engage a lawyer to formalise the terms of your agreement. We recommend getting advice before you start these negotiations and before you commit to any agreements.

Lawyer assisted negotiations

Sometimes it’s just not possible to work things out directly with your former partner. If you want to try to resolve things through lawyers, remember that you can still settle your matter without ending up in Court.

Choose a lawyer who provides you with clear advice about your options and is focused on helping you to reach a settlement. If there’s anything you don’t understand along the way, ask lots of questions.

Lawyer assisted negotiations will usually involve an exchange of proposals (from each party) in parenting matters. In property matters, there might be an exchange of documents to start with and/or some valuations before the actual negotiations start.

Once an agreement is reached, the agreement can be made legal by way of a consent order or sometimes a Financial Agreement.

Mediation

In a parenting case, except in limited circumstances (including urgent matters and cases involving family violence), parties will be required to attend a mediation/family dispute resolution and make a genuine attempt to resolve their parenting dispute prior to issuing a Court application.

Parties attend a qualified mediator who will assist them to find arrangements that work best for their children and the family. There are government-funded Family Relationship Centres around Australia and also private mediation options available.

If agreement cannot be reached, the parties will be issued with a certificate (confirming they have attempted mediation) which permits them to make an application to the Court.

In financial matters, there is no requirement to attend mediation before applying to the Court. Even though it’s not compulsory it might be useful to engage a mediator, either with or without lawyers, to attempt to resolve your matter or at least narrow the issues in dispute.

If you decide to try a mediation without lawyers, it’s a good idea to get advice before the mediation and before you agree to anything on a final basis.

Advantages of an out of court settlement

Reaching an agreement by consent with your former partner has many advantages. These include:

  • Avoiding the stress of Court proceedings for all parties involved, including children;
  • Saving money on legal fees;
  • Moving forward with your life sooner rather than later;
  • Making your own decisions; and
  • Level of certainty in knowing what the result will be.

We have agreed – what’s next?

Once you and your former partner have agreed about parenting and/or financial matters, your agreement should be formalised.

In most cases, the easiest and cheapest way to do this is to apply to the Family Court for Consent Orders.

What are Consent Orders?

A Consent Order is a written agreement that is approved by a Registrar of the Court, as long as it is considered to be a fair and appropriate agreement.

The relevant agreement is drafted in legal terms and signed by the parties. The Application is then sent to the Court for approval. Once approved, the Court will formally make the agreement Orders of the Court. This means that the agreement becomes a legally binding agreement and the Court can impose penalties if one or both of the parties refuse to follow the Orders.

If agreement has been reached about all issues and the agreement is fair, obtaining Consent Orders is usually a straightforward process.

Do I need to attend Court for Consent Orders?

Consent orders can be made without anyone going to Court.

How much do Consent Orders cost?

We offer fixed-fee and hourly rate options for the preparation of Consent Orders.

Apart from our fees for preparing and completing your Consent Orders, there is also a Court filing fee which will need to be paid in most cases. The filing fees usually change each year and can be found on the Family Court website here.

How can we help you today?

03 8625 8957 info@emerasmith.com.au

We're here to help you move forward with your legal matter. Understanding where you stand by getting the right advice early will give you clarity and certainty.

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