If you and your partner cannot agree on property or parenting arrangements after separation, there are several steps you can take to resolve the dispute. Australian family law encourages out-of-court resolution whenever possible, but the court process is available if necessary.
Here’s an overview:
1. Attempt to resolve the dispute amicably
Direct negotiation:
- Start by discussing the issues directly with your partner if it is safe and practical to do so.
- Create a list of priorities and work toward a compromise.
Mediation or family dispute resolution (FDR):
- Engage a professional mediator or FDR practitioner to facilitate discussions and help you reach an agreement.
- Mediation is often quicker, less stressful, and less expensive than going to court.
- For parenting disputes, attending FDR is a mandatory step before applying to court (unless there are exemptions, such as family violence or urgency).
Parenting plans and consent orders:
If an agreement is reached, you can formalise it through:
- A Parenting Plan: A written agreement about the care of children, signed by both parties.
- Consent Orders: Legally binding agreements approved by the Family Court for property or parenting matters.
2. Seek legal advice
- A family lawyer can provide advice on your rights and entitlements and help negotiate on your behalf.
- Legal advice ensures you understand the implications of any agreements or court decisions.
3. File an application with the Family Court
If you cannot resolve the dispute, you may need to apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a legally binding decision.
Parenting arrangements
- Best interests of the child: The court’s primary focus is on the child’s welfare, safety, and best interests.
- Factors considered include:
- The child’s relationship with each parent.
- Parental capacity to provide for the child’s needs.
- The child’s views (if age-appropriate).
- History of family violence or safety concerns.
- Orders may include who the child lives with, the time spent with each parent, decision-making responsibilities, and relocation arrangements.
Property settlement
- The court follows a 4-step process to divide assets fairly:
- Identify and value assets and liabilities: Establish a list of all property, debts, and superannuation.
- Assess contributions: Evaluate financial and non-financial contributions by each party.
- Consider future needs: Examine factors like earning capacity, care of children and health.
- Determine what is just and equitable: The court aims for a fair outcome based on individual circumstances.
4. Urgent or complex situations
- If there are urgent issues (e.g., a partner relocating with a child without consent or hiding assets), you can seek interim orders to address these concerns before the final hearing.
- In cases involving family violence, the court may prioritise safety and issue protective orders, such as an Apprehended Domestic Violence Order (ADVO).
5. Court decisions
- Once a court order is made, it is legally binding. Both parties must comply with the terms set out in the order.
- Failure to comply can result in enforcement action, including fines or penalties.
Key points to remember
- Parenting and property are separate: Parenting arrangements are based on the child’s best interests, while property settlement is based on financial fairness.
- Out-of-court resolutions are encouraged: Courts are considered a last resort due to the time, cost, and emotional stress involved.
- Time limits apply: Applications for property settlement must be made within 12 months of a divorce or within 2 years of a de facto relationship ending.
How a family lawyer can help
A family lawyer can guide you through negotiation, mediation, or court proceedings, ensuring your rights are protected and you achieve the best possible outcome. Even in high-conflict disputes, they can help reduce stress and provide clarity on the best path forward.
To talk to our family law team to assess your needs in a complimentary 15-minute consultation, simply call 1300 676 267.