When people separate and need to work out what is going to happen with their children, the property, spousal maintenance payments and child support obligations, often the first step is to attend a mediation.
There is a range of options for mediation, whether through a government organisation, through a private mediator, without lawyers present or with lawyers present.
Mediation is an excellent option to sit down and discuss the various issues in dispute with the assistance of a trained, impartial, third party.
A common misconception about mediation is that once people reach a final agreement at their mediation session (or after a few sessions), the case is closed and everyone can move on. That may be the case, but it may also be appropriate in your circumstances to formalize the agreement in a binding document either in the form of Consent Orders or a Binding Financial Agreement. There are various reasons which warrant formalizing an agreement such as stamp duty exemptions, or the ability to enforce the agreement if needed.
To ensure that the agreement is drafted correctly, it is best for people to approach experienced lawyers who practice exclusively in family law. Our team has an abundance of experience in family law, and drafting agreements for clients form a large scale of the work that we undertake.
The first step involves booking in an initial consultation with one of our lawyers. You will be placed with a lawyer best suited to the unique circumstances of your case.
The process depends on the point at which you approach us. Many people approach us before mediation starts. They want to try mediation first before actually engaging lawyers, but before starting in mediation they want to properly understand their situation. This can be particularly helpful for people to explore options and issues which had not come to mind for them yet, particularly when they have been suffering trauma following separation. Often for people at this stage, the initial consultation is sufficient for them to gain some information and understanding, and they then have the comfort of knowing they have lawyers on hand to return to if needed during the mediation process.
Others approach us once mediation is underway. They might have had a session or two of mediation and are at the point where they want to explore what has been discussed. This can be helpful in considering the ramifications of what has been discussed and often can help generate additional options.
For some, they approach us once an agreement has been reached, in principle, at mediation with a view to having that agreement drawn up in a binding form.
At the initial consultation in those circumstances, the lawyer will discuss with you the agreement that you have reached with the other person and give advice around the family law legislation and how it applies to your case and give advice on options for formalizing the agreement.
The initial consultation is completely obligation-free.
You are not required to continue with us, and indeed our advice might be that there is no real benefit to taking any further legal steps. But if you decide you want to proceed with formalising an agreement, we can then commence the work of drafting the relevant documents – either Consent Orders or Binding Financial Agreement, or both – on your behalf.
If the other person also has a lawyer, we will consult with them about the drafting of the documents.
Once both people are satisfied with the drafted documents, we can proceed to signing off on the documents.
Consent Orders will be filed with the Federal Circuit and Family Court of Australia for consideration by a Deputy Registrar or Judicial Registrar of the Court.
A Binding Financial Agreement does not need to be sent to the court for consideration.
Once you formalise an agreement, it can be difficult to change it.
Consent Orders are orders made by the Court with the consent of the parties, and parties are bound to comply with their obligations under the orders.
Binding Financial Agreements are binding and are enforceable through the Family Law court, just as Consent Orders are.
The first is for the parties to reach a new agreement, and have that agreement drafted into new Consent Orders/Binding Financial Agreement, specifically stating that the previous agreement is superseded by the new one.
In the event that there is no agreement, then an application could be brought to the Family Law court seeking to vary or set aside the previous orders. Not all applications of this sort will be allowed, and advice should be obtained from one of our lawyers as to what specific circumstances could allow for an application of this sort to be made.
Mediation is an excellent tool to use to reduce the financial and emotional impact associated with a separation. It is not right for everyone but handled properly, it can be very effective and helpful.
We almost always advise that the earlier you speak to a specialist lawyer about your situation, the better.
Most people will only ever go through a family law situation once or twice, but will likely receive often unsolicited advice from many angles. Always keep in mind that what happened for your neighbour/friend/colleague/family member may not apply in your individual circumstances.
If you are considering mediation, you will likely be juggling many practical and emotional burdens and so it is important to do what you can to get the support and advice you need to in order to put yourself in the best possible position to move forward.
If you are looking for an accredited and family law specialist firm, then please call Sarah Bevan Family Lawyers who will guide you through this emotional and complex stage in your life.