The Christmas holidays are usually a wonderful time of the year where families all get together and celebrate. However, for some separated families with children, these holidays bring about a period o...
In Western Australia, several property settlement options are available to couples who have separated after a marriage or de facto relationship. They fall into two basic categories: by consent and contested. In some cases, couples could use two or more of the available procedures.
Whether you need simple one off advice, or assistance through complex legal cases, we offer personal, professional service to help you through this time.
Are there any time limits involved in settling financial issues?
If you were married, then you have 12 months from the date of Divorce to apply to the Family Court to deal with your financial separation and/or spousal maintenance. If you have not yet divorced, this does not preclude you from being able to commence negotiations or proceedings. Often people will finalise their Divorce after finalising property and/or maintenance issues. However, there may be times when obtaining a Divorce Order first is advisable. A Family Lawyer will be able to explain the potential advantages and disadvantages to this, subject to your individual circumstances.
If you were not married and instead were in a de facto relationship, then you have 2 years from the date of separation to apply to the Family Court in relation to financial issues and/or de facto maintenance.
If you are out of the above relevant time limitation period, there are circumstances in which the Court will grant permission to a party to commence proceedings out of time. This is something that a Family Lawyer can and should advise upon and, again, will depend on your individual circumstances.
Do I need a family lawyer for my separation or divorce?
Not everyone needs a family lawyer for their separation or divorce. However, it is always recommended that parties consult with a lawyer, prior to filing any documents with the Court. This is because there are often issues that parties do not even realise are relevant or could have implications in the future – such as tax implications for a party retaining a rental property, transfer duties and other issues.
If such issues are not considered, there may be a future need to amend Orders made by the Court or, even worse, there may be a challenge to those Orders. More often than not, when this occurs, the party seeking a change will require legal advice, which can often end up being more expensive than it would have been, had they obtained the advice in the first instance. Fixing an issue is almost always more costly than avoiding the issue from the outset.
People are able to self-represent in the Family Court, whether throughout the proceedings or for portions of those proceedings, depending on their circumstances. Wherever possible, we advise that people have a solid foundation to their overall case, which can be achieved by having a lawyer advise you and prepare documents early on, which can then be used as a framework for people who may not be able to afford ongoing assistance for the entirety of their proceedings.
One thing that self-representing parties should be aware of is that ignorance of the law is not a sufficient reason for the Family Court to reverse any decision that has been made previously. To avoid unnecessary stress and cost during a time which is also undoubtedly difficult, we recommend that you attend a consultation with a Family Lawyer.
At Butlers, we offer one hour set price initial consultations for your ease of mind.
How can I resolve my family law issues? What are the two main categories of property settlement available to me after separation?
In Western Australia, the 2 main categories are “uncontested” separations (or those resolved “by consent”) and “contested” separations.
In some cases, former couples may resolve some matters by consent and others through contested proceedings. For example, they may engage in Mediation or Collaborative Law before attempting Litigation.
What is the difference between a contested matter and a matter resolved by consent in the state of Western Australia?
A matter resolved by consent is one that the parties have been able to agree between themselves, whether entirely on their own through amicable discussions, or with the assistance of their lawyers after negotiations or Dispute Resolution processes.
Contested matters arise where the issues arising as a result of a separation are not agreed, whether in their entirety or in relation to limited, specific issues (for example, who retains the family home, or whether it is sold). Contested matters are those that result in Family Court proceedings.
Contested matters in the Family Court can also be resolved by consent at any time.
What is Litigation in Family Law?
If the parties are unable to reach an agreement and the matter becomes contested, then one party will need to file an Application to the Family Court, seeking that certain Orders be made.
Once an Application has been filed to commence proceedings, the matter becomes litigated and will run its course through the Family Court, either being resolved (at any stage) by consent, or at the end of a Trial.
Court proceedings can be costly, stressful and time-consuming. Often, after lengthy proceedings, the overall outcome is not what either party wanted. This is why you may hear people saying that “nobody wins” in Court matters.
While proceedings should be the last resort, they can become necessary, whether due to a limitation period approaching or because issues simply cannot be resolved between the parties
There can also be issues about valuations, hidden assets, or allegations of failures to comply with pre-action procedures. Proceedings may become necessary because of distrust between parties.
In parenting matters, proceedings may be necessary where there are allegations of violence, or where the parties’ positions are vastly different.
If you are engaged in litigation in the Family Court, it is important to note that other options such as lawyer-based negotiation or Mediations in the remain available.
Which settlement option is best for me?
The best settlement option will always depend on individual circumstances.
For instance, it is possible to engage in Mediation in respect of both parenting and financial matters, but only possible to engage in Arbitration in respect of financial matters.
Court proceedings may encompass one or both issues.
How long will it take to achieve a settlement?
The time that is taken for a settlement to be reached depends on whether the issues are agreed or not, as well as which settlement or dispute resolution options the parties choose to utilise.
In some circumstances, a settlement can be achieved within a matter of weeks. For example, where parties have reached an overall agreement which is documented in the form of Consent Orders and filed with the Family Court. Providing all relevant information has been provided to the Court properly, the parties can expect to have final Orders made within 2 to 8 weeks after filing, depending on the current Court caseload.
In other circumstances, for example, where parties engage in a method of Alternative Dispute Resolution the process can take a few months. The time will vary, depending on how many issues need to be resolved and the willingness of either party to concede certain points.
If the matter is contested and proceedings are commenced in the Family Court, the process can be resolved at any time. However, if the parties cannot reach final agreement, then they will have to proceed through to a Trial. From the first Application through to a decision, the process can take up to about 3 years, depending on the complexity of the issues and the Family Court’s caseload.
How can family law disputes and issues be resolved outside of Family Court proceedings?
A common misconception is that, if there is a dispute between the parties, then they will have to go to Court.
This is not the case, there are numerous avenues that parties should exhaust prior to commencing Court proceedings, or continuing with existing proceedings.
Prior to commencing proceedings, parties should have discussions about whether they can resolve matters without Court intervention, or whether they can limit the issues in dispute.
Parties should also consider engaging in other methods of Alternative Dispute Resolution such as the “Collaborative Law” process, Mediation, Informal conference and/or lawyer-based negotiations. Parties certainly do not have to engage in all of these methods. Rather, it is often the case that one method is more suitable for a particular situation, or the stage of negotiations.
Further, parties should be aware that it is not “all or nothing” when it comes to lawyer-involvement. Instead, lawyers can be as involved as necessary.
Can my partner and I just discuss our issues and receive help drawing up what we decide?
Absolutely. If you feel confident enough to discuss your family law issues directly with your spouse or partner, you should do so. This isn’t always possible. For instance, one party may have more knowledge about a couple’s finances, be in a position of power or, there may be issues such as domestic violence that prevent such discussions from happening.
If you are able to discuss these matters with your partner directly, we can assist you to record any agreement you reach. While raising the need to ensure such an agreement is in writing and recorded appropriately may be difficult, there are a number of reasons why this is important.
What is Collaborative Law?
Collaborative Family Law is professionally-assisted dispute resolution. Professionally-assisted differs from Lawyer-Assisted in that it can include a wide range of professionals coming together to assist parties to reach a resolution. For example, neutral psychologists, financial advisers and accountants can be involved to assist in resolving conflicts and support the parties moving forwards.
If a couple chooses the collaborative route, they and their lawyers sign an agreement promising not to litigate or threaten to litigate the issues during the process and work together toward resolving issues without adversarial court hearings.
A collaborative separation can be a much healthier alternative to battling it out in Court. If the collaborative process is not adhered to and/or the process does not resolve the dispute, then the agreement is terminated. Once that happens, the lawyers for both parties cannot continue to represent the separating couple in any subsequent, related Court proceedings and the clients will need to find new lawyers.
During the collaborative process, it is essential that parties are aware of, and adhere to, their duty to make full and frank disclosure of all matters relevant to the dispute. Lawyers, while representing their individual clients, have a duty to assist the family as a whole to achieve the best possible outcome for them.
Parties can be guided by their lawyers about which professionals can and should be included in the process, to ensure that all outstanding issues are dealt with in the best and most harmonious way possible.
How can Mediation help me resolve my Family Law matter?
Mediation can take place at any time in Family Law matters, whether Court proceedings have been commenced or not.
If parties do find themselves in Court, they will undoubtedly be ordered to attend some form of Mediation (usually a Private Mediation, a Conciliation Conference or a Case Assessment Conference) at an early stage.
In a Private Mediation, a trained individual (the Mediator) will facilitate a meeting between the parties and their lawyers, if the parties are represented. The Mediator acts as a neutral third party. They will work with the parties to facilitate a meaningful discussion in an effort to resolve the issues. Because the Mediator is a neutral party, they will not offer legal advice directly to either party. However, they may comment on the likely range of settlement in the context of cases decided by the Court.
During a Mediation, the goal is to reach a settlement that both parties can live with, often having reference to the possible costs each party may incur if they do not resolve matters on the day. Neither side wins or loses and, rather, compromises are expected to be made by both parties to enable them to achieve a result that both can accept.
Conciliation conferences and Case Assessment Conferences are Court facilitated events that are, like private Mediations, intended to enable the parties to express their respective positions and be guided by a judicial officer about the potential outcomes at Trial.
What are Lawyer based negotiations?
Where both parties have engaged lawyers, they may choose to have them negotiate on their behalf, either in person, by telephone or through the exchange of correspondence.
The lawyers will give their respective clients advice on their legal rights and obligations and clients may then instruct their lawyers to negotiate within certain guidelines.
In person meetings are commonly referred to as One option with lawyer-based negotiations is for the parties and their lawyers to attend an Informal Conferences. These Conferences are usually held at one of the lawyer’s offices and are an opportunity for the parties and their lawyers to discuss what is important to each party and to try to reach a settlement outside of Court.