How to settle family law matters “well” outside court Part 1

Each party in a family law matter “must make a genuine effort to resolve the dispute before filing an application to start [Court] proceedings by following … pre‑action procedures …” [1]

This article covers the following themes:

Most family law matters settle outside of court but a smaller percentage, in fact, settle well.
The family law system encourages parties in different ways to settle their matter outside of court by imposing obligations on parties and their lawyers about is.
We conclude with some tips about how parties may aim to settle their family law matter well.

Most family law matters settle

The vast majority of family law matters, about ninety-five per cent (95%) settle without the need for a Judge to make a decision. The same statistic has remained unchanged for many years.

Most of those matters, around seventy per cent (70%), settle well both in relation to financial and non-financial matters.[2]

However, the ninety–five per cent (95%) statistic referred to above hides the fact that many matters do not settle well, and the reasons behind the settlement may be:

One or both parties run out of money.
Emotional exhaustion.
A party is intimidated by the other and the court process.
A settlement occurs at the steps of the Court, that is, on the first day of the final hearing or during the final hearing after many months or even years in which the court proceedings took over the parties’ lives and they have spent tens of thousands of dollars on legal fees.

The family law system encourages parties to settle

Compulsory “pre-action” procedures

Parties in a family law matter are required by law to attempt to resolve their dispute before commencing Court proceedings by complying with “pre-action” procedures including:

Exchanging with the opposing party all relevant information and documentation in their possession and control.
Making a genuine effort to settle the dispute. [3]

A party must also provide to the other party specified brochures issued by the Court:

In relation to children’s matters, a party cannot commence court proceedings unless and until the parents have attended family dispute resolution and obtained a certificate from a registered FDR practitioner that confirms that they have attempted family dispute resolution. [4]

Parties who fail to comply with pre-action procedures may face serious consequences. These may include an order for costs against the party filing, and/or an order blocking the matter from proceeding until pre action procedures are complied.

The family law system imposes disclosure obligations about ongoing costs

The legal costs incurred by each party in family law proceedings often becomes an issue in the overall dispute. The family law system requires parties and their lawyers to be transparent about the increasing costs of a family law matter.

After Court proceeding are commenced, each lawyer is required, before each court event, to file and serve to his/her client and to the opposing party and solicitor a “Costs Notice” listing the legal costs incurred to date and the estimated costs of proceedings to a final hearing. [5]

This transparency requirement about increasing legal costs tends to work as a reality check on parties and an incentive to try to resolve the dispute both on the party making the offer and the party considering the offer. [6]

Court’s capacity to make costs orders against a party

Another incentive for parties to settle their family law dispute is the fact that the Court has the power to order that one party meet the other party’s legal costs and disbursements in circumstances where the latter made a reasonable offer of settlement at some stage and the final Court’s decision is similar or less beneficiary to the former. [7]

See our separate article about “offers of settlement in family law matters.”

Some tips about how to aim to settle a family law matter “well”

What follows are some tips about how a party may aim to settle his/her family law matter well including when carrying out negotiations and attending mediation.

Obtain legal advice to become fully informed about the law and the court processes as well as the process to formalise an agreement legally.
Become fully informed about your case by obtaining all information and documentation relating to your case.
Obtain legal advice about the likely range of outcomes in your case including in different possible scenarios
Obtain financial advice about your options.
Devise, jointly with your lawyer, what we like to call at Turini McKean Law a Case Plan – we expand on the concept of a Case Plan below.
Reflect about non legal factors affecting you personally.

Regarding the non-legal factors, a party involved in family law proceedings must consider how far down the track he/she is prepared to proceed, consider possible future fatigue, including court-proceedings fatigue, emotional fatigue, running out of money, that the costs surrounding the court proceedings may become exorbitant and unjustifiable. That party should try to be one step ahead of these factors by deliberatively continuing to implement the Case plan as the matter progresses.

The case plan

At Turini McKean Law we like to devise a plan of action with our client from our first meeting. We call this to devise a Case Plan together after the client received comprehensive advice and it includes consideration about the outcome which the client wishes to obtain and the tactics and strategy to apply to achieve that outcome,

From time to time, the Case Plan may need to be adjusted, even the desired outcome may require adjustments.

Importantly, however, the client and lawyer must operate through tina deliberate way deliberately following the Case Plan and not simply drift.

Alternative dispute resolution (ADR)

There is a whole industry of mediators/counsellors to assist people to negotiate and resolve children and property matters between them. The field is known as “alternative dispute resolution” or “ADR.”

At Turini McKean Law we are passionate about ADR because we believe that via the ADR process, if all the required conditions are present it is more likely that parties in a family law matter may reach a fair and reasonable agreement which they can live with without being exposed to all the disadvantages of court proceedings.

We expand on our view about ADR as a vehicle to settle family law matters in our article – “Settling family law matter “well” outside Court – (Part 2) Thinking Outside the (Legal) Box”.

_____________________________________

[1] There are identical requirements for children’s matters and property matters in Clause 1(1) in Part 1 and Clause 1(1) in Part 2 of Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

[2] https://aifs.gov.au/resources/short-articles/separated-parents-and-family-law-system-what-does-evidence-say

[3] See Chapter 4 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Please note that there are exceptions to the requirement comply with pre-action procedures for example in cases where there is domestic violence or urgent cases.

[4] There are some exceptions that apply to this requirement in urgent matters or matters with a risk of family violence or child abuse.

[5] See Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

[6] If a party makes a written offer of settlement to the other, he/she must provide an estimate of costs incurred to date. See Rule 12.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

[7] See section 117 of the FLA at –

http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s117.html