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Family Law Mediation 

For a solution-focused approach to your parenting and property matter

Family Time

We can assist with parenting and property family law dispute resolution. Mediation is often one of the first steps in formalising settlement in family law cases. Family law mediation is a swift and economic way to resolve two of the most important aspects of your life, the distribution of property (your financial livelihood) and time with your children.

 

Mediation involves a half or full day of meaningful negotiations. Mediation provides the opportunity to reach an agreement on the day. This can be compared to Court proceedings which  can include countless letters back and forth, several Court appearances and after years in the Court system, attending a final hearing with cross-examination of both parties and witnesses where a third party who has never met you or your children decides the outcome. Court is undoubtedly a much longer, more stressful and expensive process compared to mediation. 

 

We offer property and parenting mediation online, in person and with or without the assistance of solicitors, at a fraction of the cost of Court proceedings. 

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If your matter involves both parenting and property matters, a full day of mediation is most suitable.

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Parenting 

At mediation, we will discuss and attempt to prepare an agreement as to:

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1) The time the child or children will spend with each parent or caregiver (or family member in applicable cases) including time on special occasions;

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2) Whether both parents should share "parental responsibility" equally or whether one parent should have sole parental responsibility for one or multiple aspects of parental responsibility. Parental responsibility relates to a parents power to make major long term decisions relevant to the child or children, for example decisions about the school the child or children will attend, medical procedures they may undergo and religious or cultural practices they may be exposed to;

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3) Whether the child or children will be permitted to travel internationally, and if so, at what age and under which circumstances.

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It is important to remember that parenting arrangements should be made on the basis of the best interests of the child or children. Prior to mediation we suggest that you consider the above listed topics and think about the parenting arrangements you believe reflect your child or children's best interests.

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If agreement is reached we can assist you to prepare a Parenting Plan or we can recommend a solicitor who may be able to assist you to prepare legally enforceable consent orders. 

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Generally the things said and offers made at mediation cannot be used in Court and must be kept confidential. An important exception is that if a Parenting Plan is signed and dated by all parties then the Agreement is no longer required to be kept confidential and can be used as evidence in Court. Whether or not you sign and date a Parenting Plan is therefore a very important decision. 

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A Parenting Plan is not legally enforceable by a Court. However, the Court often gives weight to the content of a Parenting Plan when making decisions, as a signed Parenting Plan reflects the parties agreement as to the child's best interests at the time of signing which is usually important evidence. If a party breaches the Parenting Plan and the matter proceeds to Court, the Parenting Plan will form part of the evidence that is reviewed by the Court, Parenting Plans are therefore very important documents. For legally enforceable arrangements you will require consent orders or Court orders as a result of going to Court. 

Property 

family property law

Family law property matters usually involve agreeing to a percentage split of the net asset pool. For this reason we commence property law mediation by identifying the asset pool (all assets and liabilities held solely and jointly by each party) and the values of such (including superannuation).

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After settling the balance sheet of assets, liabilities and financial resources to the best of our ability, the process of negotiations regarding the items on the balance sheet (who gets what and when) begins. If settlement is reached and you both sign and date an agreement to form a Heads of Agreement, the Heads of Agreement is no longer required to be kept confidential and it is admissible in Court as evidence. Heads of Agreement are therefore very important documents, however they are not legally enforceable.

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To create a legally enforceable and formal property agreement, you may engage a lawyer to assist with the preparation of consent orders or a binding financial agreement. ​You can also prepare an application for consent orders without the assistance of a lawyer, however as your mediator I cannot assist with the preparation of consent orders or a binding financial agreement. 

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How Does the Court Decide "Who Gets What?"

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The Federal Circuit and Family Court of Australia has jurisdiction to determine family law matters for married or divorced individuals or separated de facto couples. 

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The Court must first decide whether it is fair to alter the couples existing property interests at all. If so, the following 4 stage process will follow:

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  1. Identify the property pool: this involves listing and valuing all solely and jointly owned assets (including superannuation), liabilities and financial resources. 
     

  2. Consider each parties contributions: This includes considering each party's initial contributions (what they entered the relationship with), their financial and their non-financial contributions during the relationship and post separation. Examples of non-financial contributions include contributions as home maker, as parent and might include time and effort put into renovations. It is important to note that the Court will consider the asset pool as at the current date (not the date of separation), which is a common misconception. Both parties are required to provide full and frank financial disclosure as to their current financial circumstances which includes assets and liabilities accrued post separation. For example, say "party A" received an inheritance post separation - this would need to be disclosed. The Court will be interested in whether either party received any financial windfalls (eg inheritances or lottery wins) during the relationship or post separation, and how the funds were spent. The duration of the relationship is also a key consideration of the Court when determining property matters. The Court usually provides a percentage assessment of contributions at this stage. For example purposes only lets say the Court decides the husband's contributions were 60% compared to the wife's contributions at 40%. 
     

  3. The Court will consider the "future needs" of each party: Should one party receive more than the other due to their circumstances and their "future needs"? Relevant future needs factors include each party's health (is there anything that may impact their ability to work and earn a living), who will have primary care of the children, each party's earning capacity and income, the age of each party, whether a party is paying child support, whether a party has financial resources (for example they may be about to receive an inheritance or have an interest in a trust) and sometimes the financial circumstances of new partners will be relevant. The Court may make an adjustment at this stage in response to future needs. For example purposes only, say the Court assessed the wife's future needs at 5% , then the overall percentage outcome would go from 55% to the husband 45% to the wife (contributions) to 55% to the husband and 45% to the wife overall, after future needs are taken into account. The percentage assessment and outcome will vary depending on the unique facts and circumstances of the each case. There is absolutely no presumption or rule that there will be a 50/50 split, which is a common misconception.
     

  4. The Forth step requires the Court to consider whether the proposed split is "just and equitable": Is the proposal fair?, will the orders work? and will both parties be okay?
     

We suggest that you obtain legal advice prior to attending mediation. Your lawyer should be able to give you advice on a percentage "range" of what you may receive if the matter was decided in Court. You can attend mediation with or without a lawyer. The benefit of obtaining legal advice prior to mediation is so you can make legally informed and reasonable offers of settlement and so you know if offers made on the day are within the range of a "fair" outcome pursuant to your legal advice.

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Preparation for
Property Mediation 

Prior to attending mediation for property matters you should exchange financial disclosure documents with your ex-partner, or bring your financial disclosure documents to mediation so we can exchange documents on the day. As part of the mediation process we must identify all assets and liabilities and so you should have evidence of the value of all assets and liabilities. You might:

  • Obtain copies of your last superannuation statement and obtain evidence of your current superannuation balance;

  • Complete Redbook e-valuations for all motor vehicles via the following link: https://www.redbook.com.au/;

  • Obtain copies of bank account statements for an agreed period of time (for example from the date of separation to the current date);

  • For real estate, obtain 2 to 3 real estate appraisals or bank valuations, or liaise with your ex-partner and agree to a value;

  • Obtain copies of your last 3 x tax returns and notices of assessment;

  • Obtain copies of your last three pay slips or equivalent;

  • Obtain evidence of any assets worth over $2,000 that you or your ex have purchased since separation;

  • Obtain evidence of any assets you or your ex has sold within the 12 months prior to separation and any assets that have been sold or disposed of post separation;

  • For businesses: speak with an accountant or business valuer to obtain a valuation;

  • If you received any lump sum payments during the relationship or post separation, obtain evidence of how much you received, when it was received and how the money was spent;

  • If you expect to receive a lump sum payment in the future (other than disclosed income) obtain evidence of how much you expect to receive and when (this is relevant to future needs considerations)

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For more information on your duty to provide full and frank disclosure please review the Resources section below. 

 

Resources 

Family law matters are conducted within the Federal Circuit and Family Court of Australia ("FCFCOA"). The FCFCOA website has a lot of helpful and informative information about the Court process and pre-Court action procedures (what you must do before going to Court).  Some relevant information can be accessed via the following links:

 

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