A Settlement-Focused Approach to Family Law

Why always aiming towards a realistic resolution can not only reduce cost, stress and uncertainty but also be a clever tactic—even when a matter proceeds to court

The family law system in Australia is geared to get parties to resolve their dispute at all stages of a family law matter including before commencing court proceedings.  Most family law matters settle, about 95%, but some will not settle until the final hearing date when parties already spent years fighting and spent a lot of money.

A settlement-focused strategy does not mean giving up or accepting an unfair outcome. It means assessing what a court is likely to decide, identifying the issues that truly matter and making informed offers that give both parties a practical alternative to continued litigation.

Why settlement should remain in focus

Most people want to resolve a family law dispute without the anxiety, delay and expense of a contested hearing. A matter that runs to a multi-day final court case can cost each party hundreds of thousands of dollars, particularly when expert evidence is required.

Even when settlement is not immediately possible, a resolution-focused approach can narrow the issues, reduce legal costs and stress, encourage meaningful disclosure and negotiation, and create a clear record of reasonable offers.

How the process encourages resolution

Before proceedings

The Family law Rules imposes what are known as “pre-action” procedures can require disclosure, genuine settlement proposals and mediation.[1] Parenting matters may also require family dispute resolution, subject to applicable exceptions.

After proceedings begin

The court normally directs parties to attend mediation or another form of dispute resolution in property and parenting matters after proceedings are commenced. Lawyers must also keep clients and the opposing party, and the Court informed about increasing legal costs as the matter progresses.

Written offers and costs

A carefully prepared written offer can be strategically important. If the final outcome is no better—or is worse for the other party—than an earlier offer, it may support a later application for costs. The result depends on the circumstances, so offers should be framed with legal advice.[2]

Settlement focus as a litigation strategy

A strong strategy combines an objective assessment of the orders the court is likely to make with a case plan built around that assessment. This is particularly useful in “more or less” disputes, that is, those disputes about more or less time a parent may get to have with his/her child, more or less property a party or financial support that a party should receive.  

Some disputes are more binary. A proposed international relocation may leave less room for compromise. Even then, practical interim proposals can reduce urgency and help identify the real issue.

Why litigation costs escalate

If a matter has a degree of complexity and involves a dispute about children and property it is not uncommon that, in addition to the parties themselves, various witnesses may be involved and the matter may require several days at trial. The parties would normally each engage a barrister, an expert advocate instructed by the solicitors. Several expert witnesses may be engaged to give evidence including perhaps a licensed valuer regarding the value of real property or other assets such as a business or jewellery, a superannuation expert, an accountant, a forensic psychiatrist or psychologist etc.

The example shows how quickly complexity and cost can grow—and why settlement options should be tested throughout a case.

Case study: de-escalating a parenting dispute

In a parenting matter, one parent (Party A) brought a disputed parenting application while owing tens of thousands in child support Party B.

Party B proposed that both parties agree to enrol in parenting and anger-management courses, together with a forensic assessment of the parents and children. At the same time, Party B sought orders for lump sum maintenance for the children until each child turns 18 years of age (totaling hundreds of thousands dollars) and that to implement the order Party A’s assets be sold.

Party B’s counter proposal to the Court aimed to de-escalate the dispute, focus on practical outcomes and at the same time seek orders which should encourage Party A to consider settling. At the same time, Party B gave notice of a possible indemnity-costs[3] application if the litigation continued unreasonably.

Case study: resolving a complex property dispute

Another matter involved a former military member (Party A) receiving a significant superannuation pension, a large military compensation payout and approximately half a million remaining from the sale of the family home. The other party (Party B) initially sought 80 per cent of the combined property.

The legal and actuarial issues were complex but supported the proposition that Party A was entitled to the bulk of his military entitlements and therefore the bulk of the pool divisible between the parties.

Party B failed to attend to some basic requirements in preparation for the case including to obtain Party A’s trustee’s approval to receive a share of Party A’s superannuation entitlements.

To make the ultimate outcome workable and more palatable for the Judge who had to approve it, the legal team for Party A did the work which Party B failed to do in preparation for Party B’s case including to obtain the superannuation fund’s trustee’s approval.

Party A legal team did the work which Party B failed to do to improve Party B’s case. The matter settled terms approved by a Judge.

The assessment made by Party A and Party A’s legal team, was that the outcome achieved was the optimum outcome on Party A’s behalf.

Case study: taking a realistic ownership position

In a dispute involving several properties, a parent had helped an adult child acquire a 30 per cent registered title on some of those properties. The son became estranged from the parent. The son was a party in the family law dispute and sought a substantially larger share to the properties he co-owned than his 30% title. After a comprehensive analysis on behalf of the father, the father argued that the son was only entitled to his 30 per cent share of title. The father did not seek orders for the son to get less but he resisted the son’s excessive claim. The parent succeeded and obtained an indemnity costs order of more than $250,000.

What a practical strategy looks like

• Obtain complete information and disclosure early.
• Identify the likely range of court outcomes.
• Separate high-value issues from points of principle.
• Listen to the client’s wishes and concerns at all times.
• Develop a case plan and implement the plan throughout even if at times it must be adjusted.
• Use expert evidence only where it materially affects the result.
• Make clear, workable written offers.
• Review the proposal as evidence and costs change.
• Keep the client’s long-term financial and family interests at the centre.

The better approach

Settlement is not always possible, and some cases require judicial determination. But a realistic resolution strategy can still improve the conduct of the case, reduce the issues for hearing and demonstrate that a party has acted reasonably.

The central question is not simply, “Can we win?” It is, “What outcome is the court most likely to consider fair, and how can we reach—or improve on—that outcome with less cost, delay and disruption?”

This article provides general information only and is not legal advice. Family law outcomes depend on the facts of each matter. Obtain advice about your circumstances before acting on any settlement proposal.

[1] See Chapter 4 and Schedule 1 of the Federal Circuit and f\Family Court of Australia (Family Law) Rules 2021.

[2] See at https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/

[3] Indemnity costs – the Court can award all costs reasonably and properly incurred where the conduct of a party warrants such an order being made. These costs are most frequently awarded when a party has declined an offer of settlement and has been awarded a sum less than that offered. https://www.fcfcoa.gov.au/gfl/pubs/gfl-costs