Why Family Law matters don't need to end in court
At Orman Solicitors we believe that litigation and going to court is the last resort, especially in family law matters. When parties are navigating their way through emotionally challenging times it is prudent for solicitors to advise a non-adversarial route such as mediation and negotiation. The Federal Circuit and Family Court of Australia initiated pre-action procedures in September 2021 which opened a pathway for parties to pursue the opportunity to explore the possibilities to resolve Family Law issues outside of court.
The division of assets
Paramount to any family law matter rests in financial property and parent/children’s matters. Both aspects are daunting and need to be handled with care. Any breakdown of a marriage or de-facto relationship that calls for legal advice inevitably means that there is a distribution of assets that needs to be discerned, calculated, assessed, and then equally distributed. A crucial step that must be considered before getting to this step, particularly if children are involved in the relationship is that the parties have obtained a section 60I certificate.
What is a Section 60I Certificate?
The law requires separating families who have a dispute about children to make a genuine effort to try and resolve the dispute through Family Dispute Resolution (FDR). FDR is a type of mediation run by registered Family Dispute Resolution Practitioners.
Most people can work things out and don’t need to go to court to have matters resolved. However, an accredited FDR practitioner can issue a section 60I certificate where FDR has failed due to:
non-attendance or FDR was not appropriate,
or the parties made a genuine effort but couldn’t agree to the matters in dispute and require a court to resolve the issues,
or a non-genuine effort was made by one or more people involved in the dispute.
Section 60I certificates allow people to file an application in court and does not serve any evidentiary purpose. This should be clearly explained to clients as well as any consequences attached, such as the court may award costs against a party on the basis of failure to attend or not making a genuine effort.
As you can see, family law matters don’t necessarily need to end up in court if a genuine attempt has been made to resolve the issues in this process.
We don’t have kids, do we need to go to court?
Parties are not at liberty to go through this process if it is merely a financial or property dispute, although a 12-month separation is necessary.
Mediation over litigation
The best advice a solicitor can give their client is to engage in the non-adversarial space that is mediation. This is without a doubt the space that allows the parties to be in control of their of own disputes. Mediation is informal and will often involve a mediator who comes from a position of expertise that involves bringing parties as close as possible to an agreed position. Importantly it means that the parties have a fair and equal say to negotiate what they want.
At Orman Solicitors we have been representing clients in mediation for over 20 years helping clients achieve a resolution faster and with less cost. We pride ourselves on providing reliable, trustworthy services, unmatched legal experience and compassion and empathy in everything we do. No matter what your circumstances, our team always has the best interests of our clients in mind, and we’ll strive to be an advocate for you and your rights.
If you are ready to sit down with our solicitors to discuss your matter, give us a call to book your complimentary 15 minute consultation to determine the best course of action you should take.