Family Law

Choosing a Personal Injury Lawyer to Manage Your Compensation Claim

Suffering a personal injury can be a distressing and life-altering experience. Whether your injury is a result of a car accident, medical negligence, workplace incident, or any other circumstance, it is often necessary to pursue a compensation claim to safeguard your future.

In Australia, navigating the legal complexities of personal injury claims can be challenging without proper guidance. This is where a skilled and experienced personal injury lawyer is invaluable. Choosing the right lawyer to manage your compensation claim is a critical decision that can greatly impact the outcome of your case.

Role of the Personal Injury Lawyer

A personal injury lawyer specialises in handling cases where individuals have suffered physical, emotional, or financial harm due to the negligence or wrongful actions of another party. Their expertise extends to evaluating the prospects of succeeding with a claim, gathering evidence, negotiating with respondents, and representing clients in court if necessary.

The first step of your compensation claim is an initial consultation with a lawyer. During this initial consultation, you will need to provide details about your injury and the relevant circumstances. The lawyer will evaluate the merits of your case and discuss potential strategies.

If you decide to proceed with the claim, the next step will be for your lawyer to gather evidence, including medical records, accident reports, witness statements, and any other relevant documentation. The aim of this phase is to ensure that there is adequate evidence to support your claim. Your lawyer will calculate what is a fair amount that compensates you adequately for your injuries. Your lawyer will also be aware of any statutory limitations that apply and can ensure that you initiate proceedings before you run out of time.

When possible, your lawyer will engage in negotiations with the respondent, which usually involves discussions with their insurance company. If negotiations fail to yield a satisfactory outcome, your lawyer may initiate legal proceedings in a relevant court or tribunal. This step is usually taken when a court trial is necessary to achieve a just resolution.

Fortunately, most personal injury cases are settled before going to trial. When a trial is necessary, your lawyer will represent you in court, presenting evidence and arguments to support your claim. If successful, you could receive compensation for medical expenses and lost wages, future medical expenses and costs, loss of future earnings, and the pain and suffering you have endured.

Factors to Consider When Choosing a Personal Injury Lawyer

Choosing the right personal injury lawyer is a decision that can significantly influence the outcome of your compensation claim. Remember that seeking the right legal help is an essential step toward achieving justice and rebuilding your life after a personal injury. Here are seven important factors to consider:

Reputation

You should do your homework before retaining a personal injury lawyer. You can research a lawyer’s reputation within the legal community and among previous clients. Online reviews and testimonials can provide valuable insights into a lawyer’s professionalism, communication skills, and success rate.

Experience

You should look for a lawyer with a significant track record in handling personal injury cases. An experienced lawyer will have a deep understanding of the intricacies involved, ensuring they can effectively navigate the legal process and anticipate potential challenges. While many personal injury cases are settled out of court, it is beneficial to choose a lawyer who is comfortable and experienced in the courtroom. This ensures they can advocate effectively on your behalf, even if the case goes to trial.

Expertise

Personal injury law is diverse. It encompasses areas such as motor vehicle accidents, workplace injuries, medical negligence, public liability, and more. You may benefit from selecting a lawyer who specialises in the specific circumstances surrounding the injury you have sustained, as their expertise will be tailored to the nuances of that particular area of law.

Communication

Effective communication is crucial in any legal matter. Most personal injury lawyers offer a free initial consultation, so you should use this opportunity to gauge whether you feel comfortable working with them. Your lawyer should be attentive, responsive, and able to explain complex legal terms in a way that you can understand. A lawyer who keeps you informed at every stage of the process can provide peace of mind during a challenging time. It is also important to remember that you are likely to be in a vulnerable state after your injury, and you will benefit from having someone on your side who will persevere and make you feel heard and supported.

Resources and Support

Personal injury cases often require a team effort. Ensure that the lawyer you choose has access to the necessary resources, such as investigators, medical experts, and other professionals who can strengthen your case.

Fee Structure

You need to discuss the lawyer’s fee structure during your initial consultation. Many personal injury lawyers work on a “no win, no fee” basis, meaning they only get paid if you win your case. Be clear about any potential fees or expenses that might arise during the process.

Trust Your Instincts

Ultimately, the best advice when it comes to choosing a personal injury lawyer is to trust your gut feeling. Your lawyer will serve as your advocate during a challenging time, making it important to select someone in whom you have confidence and with whom you feel comfortable.

This is general information, and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

Key considerations for controlling business debtors

While growing your business it can become easy to lose sight of effectively managing your debtors, however doing so, can help your business continue to grow successfully.

The information below can help make the task of controlling business debtors much easier!

As always, we recommend you seek legal advice if you have any concerns.

Have terms of trade in place before extending credit and know who is behind the business

Make sure you put all terms of trade in writing, always! It’s surprising how many businesses still supply goods and services by informal arrangements. Having terms of trade in writing is an effective way of minimising and preventing bad debts arising.

Another important factor is to complete thorough credit history and business reference checks before offering credit to new potential customers. Be upfront of your terms of trade and credit limits and put these in writing. Ensure the new customer signs acceptance of your terms of trade.

If you are unsure as to whether your terms of trade are exhaustive, we recommend you seek legal advice from one of our experienced lawyers.

Know who owes the money – do an ASIC search

It is vital to perform background checks on potential customers before commencing a business relationship with them.

The only way to know whether a business you want to deal with is in administration, liquidation or deregistered is on ASIC Registers. This is an easy and quick way for weeding out any customers that do not have the ability to pay you.

Know the rules about serving letters of demand / statutory demands – time limits, thresholds, and service requirements

We strongly recommend you have a letter of demand template your business can use should the need arise. A letter of demand should include:

• accurate information;
• a clear intention to commence legal proceedings if you are not paid by a specified time;
• attached copies of any relevant supporting documentation.

The letter of demand should be signed and a copy should be kept for your records. We recommend you speak to one of our lawyers who can draft a letter of demand template customised to your business.

You should also be familiar with Section 459E of the Corporations Act 2001 (Cth). This section deals with statutory demands. A statutory demand is a written request for payment of debts owed by an insolvent company. The debt owed must be at least the statutory minimum. This is currently $4000; however, you should confirm the amount before taking any course of action.

A statutory demand requires a debtor to do one of the following:

• pay the debt they owe you;
• secure or compound for the debt; or
• make an application to set aside the statutory demand.

The statutory demand must be drafted in its prescribed form.

The debtor company has strictly 21 days to comply with the statutory demand, otherwise a legal presumption will be raised that the company is insolvent. Once this occurs, you can apply to the Federal or Supreme Court for an order that the debtor company be wound up in insolvency.

You must also satisfy the service requirements of a statutory demand which may be done by leaving the statutory demand or posting to the company’s registered office. You can also deliver a copy of the statutory demand personally to a company director. It is critical that service of the statutory demand is done correctly, and service is evidenced in an Affidavit of Service. 

It is obvious from the above that procedures involved in making a statutory demand can be complex. We strongly recommend you seek legal advice to prevent your statutory demand from being set aside.

Educate your credit control team

It is vital that all staff in the credit control team are on the same page when it comes to your business’s credit control policy and procedures. We recommend you have regular meetings to go through credit control policies and what changes need to be made, if any.

It is important to ensure that all staff understand the terms of trade. Taking some time out to ensure all staff clearly understand the terms of trade can prevent unnecessary debt chasing down the track.

We also recommend you hire an expert in credit control to provide training to staff in how to become a better credit controller or outsource your debt control to a debt collection expert.

Keep notes of phone calls, etc. when chasing money

If you find yourself chasing money from a debtor, it is critical to keep a record of phone calls, emails, letters of demand and other documentation supporting your claim. It will also make it easier to keep track of your dispute.

Conclusion

The key to controlling business debtors is prevention! Having clearly written terms of trade and knowing who your debtor is and their history of paying debt, minimises the risk of you having to chase them for money in the future.

Training and educating your credit control staff is also vital to ensure they are on board with the business’s trading procedures and policies and are effective in carrying out these procedures and policies.

Even if you believe you have your business covered with effective debtor control practices, we still recommend you seek advice from an experienced lawyer to give you peace of mind.

This is general information, and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

Can I Stop Somebody from Contacting or Seeing my Child?

In the complex landscape of family law, few issues are as emotionally charged as the care of children. It is common for parents to question what they are legally obliged to do and their decision-making rights about their children. For instance, parents often struggle with knowing whether they can stop someone from contacting or seeing their child. Sometimes this is about contact with the other parent, but at other times the contact is with another significant person, such as a grandparent. Unfortunately, in neither case does the law provide clear-cut guidance, although there are principles that can help to determine these issues.

Contact with the Other Parent

In Australia, the law concerning the care of children is generally governed by the Family Law Act 1975 and exercised by the Federal Circuit and Family Court of Australia (or, in Western Australia, the Family Court of Western Australia). Family law prioritises the best interests of the child above all else.

Historically, when the care of a child has become a decision for the Court, it has favoured arrangements that allow for ongoing contact with both parents, even in cases of parental conflict or estrangement. This is not because parents have ‘rights’ regarding their children, but rather because there  was a presumption that both parents had ‘equal shared parental responsibilities’ towards their children. Therefore, if both parents have equal decision-making power about their child, it was presumed by the Court that neither parent should prevent contact between the child and the other parent.

However, this presumption was always rebuttable. There were circumstances in which the Court would limit or restrict contact between a parent and their child to ensure the child’s safety and well-being. These circumstances typically involved abuse, neglect, substance abuse, domestic violence, or other factors that posed a risk to the child’s physical or emotional health. Accordingly, outside of the courtroom parents were empowered to limit or restrict contact with the other parent if it endangered their child’s safety or well-being.

If the other parent believed that this power was being used inappropriately or punitively, they could seek legal intervention to establish contact. In such cases, the Court would carefully consider the evidence presented and make a decision based on the best interests of the child.

More recently, the Court is being guided by legislative changes to acknowledge, from the outset, that a child may not benefit from spending significant time with a parent and the presumption of shared parental responsibility has been removed. The Court will now consider an amended set of factors when making decisions about parental contact.

These factors include what arrangements promote the safety of the child and each person who has care of the child, the views expressed by the child, the developmental, psychological, emotional and cultural needs of the child, and the capacity of each parent to meet those needs. In addition, the Court will consider the benefits to the child of having a relationship with their parents and other people who are significant to them and anything else that is relevant to the particular circumstances of the child.

Despite this changed emphasis and provided the best interests of the child are at the forefront, it is likely to remain uncommon for the Court to order that a child has no contact with one of their parents. There is a significant body of research that shows that in most circumstances it is in the best interests of children to have a relationship with both parents. As such, parents outside the courtroom should consider withholding a child’s contact with the other parent to be a course of last resort and only taken when it is necessary in the interests of the child. Parents should also be mindful that withholding a child from contact with another parent without valid justification can have serious consequences. The Court takes a dim view of parents who engage in ‘parental alienation’, which involves manipulating or coercing a child to reject the other parent.

Other Significant People

Ultimately, the goal of Australian family law is to promote the well-being of children. Within this broader mission, the Court not only considers contact between the child and their parents but also contact with other people who are significant to the child. For instance, if a child has developed a relationship with a grandparent, perhaps through regular visits, it may not be in their interests to have this relationship severed. Again, this is not because of any concept of ‘grandparent’s rights’, which is not a recognised legal principle in Australia. Rather, it is because the Court recognises that when someone is important to a child, it can be harmful for them to lose this person and that this should only happen if it is unavoidable. For instance, if a grandparent is abusive or alienating, then it would be reasonable to prevent them from having contact with the child, even if this goes against the child’s expressed wishes. However, it would not be sufficient for a parent to withhold access to their child simply because they wish to do so, or to punish the grandparent, in circumstances where the child has a positive and longstanding relationship with their grandparent.

Conclusion

At all times a parent must consider the best interests of their child when determining who can and cannot have contact with their child. As long as it is the child’s interests that are being prioritised, the parent may decide to prevent contact. If the other person has the necessary standing, they may challenge this decision before the Court, at which time consideration will be given to what is in the overall best interests of the child. This consideration will include the impact on the child if their parent is forced into contact which is not healthy, such as with a parent with whom they have a negative relationship.

This is general information, and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

First steps after separation – some practical considerations

The breakdown of a relationship, whether by choice or circumstance, can be complex and challenging. In Australia, the Family Law Act 1975 sets out the legal framework for divorce, the division of property and parenting arrangements after a relationship breaks down. An experienced family lawyer can provide valuable legal advice and guidance when it comes to navigating these laws.

Family law matters are not just legal problems, in addition to navigating the law and the emotional aftermath, addressing the practical side of separation can be equally important to transition into your new phase of life. There are a host of considerations, many of which will need immediate attention. Following are some typical practical matters that may need to be dealt with.

Living Arrangements

• Accommodation and housing will naturally be a concern. You’ll need to decide who stays and who leaves the family home which might be influenced by employment needs, children’s schooling, and nearby family support.

• If you are renting, decide who will stay in the current home, notify your landlord and have the rental agreement updated. If you have a mortgage, inform your bank of your separation and any decisions made regarding mortgage responsibilities.

• If you are moving out, you will need to explore housing options that fit your budget and lifestyle, which can be particularly difficult in the current market. Ask friends and family for referrals and support.

• If you are relocating, make sure you change your address with various organisations, and for added security, you may want to consider renting a post office box.

Children and Schooling

• For families with children, their well-being and continuity in learning and development are paramount. Keep your children’s best interests in mind – try to put differences aside to work out arrangements that will cause them the least disruption and, where possible, foster a meaningful relationship with both parents.

• If you can, establish a temporary agreement as a starting point, which can lead to a more formal arrangement later. Maintaining consistency is likely desirable in most cases. If possible, stick to your children’s current schooling and childcare arrangements to maintain stability in their lives.

• Meet with school and childcare administrators to inform them about the separation and keep them notified of any changes so they are aware of the situation and can help. Schools often offer support and resources to help children cope with the change.

• Coordinate with your ex-partner to work out a plan for childcare/school pickups, extracurricular activities, and parent-teacher meetings. Consistency and cooperation in these areas can significantly reduce stress for children.

Banking and Accounts

• Contact your bank to discuss your mortgage, joint loans, savings accounts, credit cards, and every other aspect of your banking. You will likely want to open a separate savings account and close or put a hold on credit card facilities, lines of credit, etc. Major banks generally have online resources and checklists to help those who have separated to work through their banking needs.

• Protect and help safeguard your privacy by updating passwords and login details for online banking accounts, email, social media platforms, etc.

Property and Record Keeping

• Secure your personal documents and items. Ensure you have all necessary identification, financial records, and personal valuables in a safe place. Obtain originals or copies of important documents like passports, marriage certificates, birth certificates and insurance policies.

• Ensure that your property (your home, other real estate, motor vehicles, boats, etc.) remains insured. Failing to retain insurance, should the unforeseen happen, can have devastating financial effects. Work out with your ex-partner who is paying for what and keep accurate records.

• Prepare a list of assets and liabilities (and account balances as of the date of separation). Property, shares, investments, bank accounts, superannuation, mortgages, loans, and credit card accounts will all be relevant when it comes to finalising your property.

• Document your agreed date of separation and keep a journal to record other significant events and timelines. This is important information when it comes to applying for a divorce and determining deadlines for filing court proceedings, if this becomes necessary later.

Support and Assistance

• Contact the Department of Human Services to learn about child support and whether you are entitled to financial assistance.
• Create a trusted support network and enlist help from friends and family as well as professional counselling or therapy, if needed. Family Relationships online – https://www.familyrelationships.gov.au/ provides various resources and information to help families and relationships.

• Lean on your support network. Friends, family, support groups, and professional counselling can provide the emotional support needed during this challenging time. Remember, it’s okay to ask for help, and reaching out for professional guidance is a prudent way to navigate the complexities of separation.

Moving Forward

Don’t put off getting quality legal and financial advice from qualified professionals.

Consider making or updating your Will and other documents such as a power of attorney. You should also review your superannuation and life insurance policy, as relevant, as you may wish to make changes to the beneficiaries. Your lawyer can provide guidance and advice in these important estate planning areas.

Separation demands both emotional and practical resilience and working out some of the preliminary steps to take after a relationship breaks down can be difficult when you are emotionally charged. Fortunately, there are resources available to help you navigate these difficult times. We understand the sensitivity and intricacies inherent in family law matters – the legal and the practical issues – and our goal is to provide comprehensive support and guidance to all our clients.

This is general information only and you should obtain professional advice relevant to your circumstances. If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].

What happens to a family business after a couple separates?

Divorce is almost always a difficult and disruptive life event. For couples who own a family business, the stakes are particularly high, as the fate of the business often becomes a central point of contention during divorce proceedings.

In Australia, a family business is considered part of the asset pool of the relationship, regardless of whether it was established before or during the relationship. Navigating the complexities of separating business and personal interests after separation requires careful planning and help from the right professionals.  

Death of a Business

It is realistic to acknowledge that not all family businesses survive the upheaval of divorce. Some businesses may struggle to weather the financial strain and operational disruptions caused by the separation, leading to their eventual closure or liquidation.

Others may be irreparably damaged by acrimony and conflict between the spouses, making it impossible to continue operating in any meaningful capacity. In such cases, the spouses may be forced to sell off the business assets and divide the proceeds as part of the property settlement.

When this happens, the realised value of the liquidated business (if there is any) is simply added to the spreadsheet that tracks the total property pool of the relationship. The separating parties then need to agree on what percentage split each person is going to receive from the property pool. If they cannot agree then the Federal Circuit and Family Court of Australia will decide for them. In making this decision, the Court will consider things such as the length of the relationship, the contributions of each party to acquiring and keeping the assets of the relationship, and each person’s future needs.

Dividing a Living Business

If the business is to continue to operate, then the first step is to determine its value as a going concern. This can be a complex process, especially for businesses with significant assets, intellectual property, or goodwill. Valuation methods vary depending on the nature of the business and may involve assessing factors such as revenue, profits, market trends, and industry benchmarks. In some cases, forensic accountants or business valuation experts may be enlisted to provide impartial assessments of the business’s worth.

Once the value of the business has been determined, the next step is to decide how it will be divided between the parties. This can be particularly challenging when both spouses are actively involved in the business or have made significant contributions to its success.

The Court has broad discretion to make orders for the division of property. For instance, one spouse may be ordered to buy out the other’s interest in the business, either through a lump-sum payment or a series of instalments over time. This option allows one spouse to retain ownership and control of the business while compensating the other for their share of its value.

Alternatively, it may order the sale of the business and the equitable distribution of the proceeds between the spouses taking into account the distribution of other assets of the relationship (such as the family home or superannuation accounts).

While selling the business may not be in the financial best interests of either party or the business itself, the Court will make this order if it is the only equitable way to ensure that the property pool is divided between the parties.

In most cases, the Court prefers there to be a clean and final separation of all marital assets after the breakdown of a relationship. However, in some cases, the best option is for the spouses to continue operating the business together post-separation, either as joint owners or through a partnership or corporate structure. While this arrangement can be fraught with challenges, particularly if the spouses have a contentious relationship, it may be the best option for preserving the value of the business and ensuring its ongoing viability.

In such cases, it is essential to establish clear guidelines and protocols for decision-making, conflict resolution, and the division of responsibilities to minimise friction and maximise cooperation.

Conclusion

Ultimately, the fate of a family business after a couple separates in Australia depends on a variety of factors, including the value of the business, the contributions of each spouse, and the willingness of the parties to cooperate and compromise. While the process can be fraught with challenges and uncertainties, seeking the guidance of experienced legal and financial professionals can help couples navigate the complexities of dividing assets and planning for the future.

By approaching the situation with pragmatism, transparency, and a commitment to fairness, couples can mitigate the impact of divorce on their business and lay the groundwork for a successful transition to the next chapter of their lives.

This is general information only and you should obtain professional advice relevant to your circumstances. If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].

Can I Change the Locks After We Separate?

Separation is often a challenging and emotionally charged time in a person’s life, usually accompanied by significant decisions regarding living arrangements. One common question that arises during this period is whether it is legally permissible to change the locks on a property after separation. Unfortunately, it is difficult to give a simple answer to this question as it depends on a number of factors, including whether the property is rented or owned, and whose name is on the relevant paperwork. Understanding the law regarding the occupancy of a property is crucial in navigating this situation within the bounds of the law.

Leased Property

When the property is leased or rented, all tenants listed on the lease have the right to live in the property during the term. However, in this situation, the paperwork is largely irrelevant, as tenants are generally prohibited from changing the locks without the landlord’s permission, even in the context of a separation. As such, altering locks without proper authorisation could lead to eviction or breach of lease terms.

This does not mean that a person in a leased property must continue to reside with someone until the end of the lease, especially in situations involving domestic or family violence. In such situations, it is wise to speak to a tenant advisory service in the relevant state or territory, as there are options to help tenants break leases to escape unsafe situations.

Owned Property

Joint owners have equal rights to access and occupy a jointly owned property unless and until a legal agreement or court order dictates otherwise. Therefore, if both partners have joint ownership of the property, neither party should unilaterally change the locks without the other’s consent.

By contrast, in cases where one party solely owns the property, that owner generally has the right to change the locks, denying access to the other party. However, even if one party is the sole owner, changing the locks without prior discussion can be viewed as an aggressive move and may escalate tensions during separation negotiations.

In addition, changing the locks, even with full legal authority as the sole legal owner, may be subject to challenge in family court proceedings. If there are children involved, locking a co-parent out of the home can have significant emotional and psychological consequences for the children. As the court prioritises the best interests of the children, in most cases it is important to not take unilateral steps that will disrupt the relationship between the children and the other parent.   

What Orders Can the Court Make?

When disputes over the occupancy of a property arise after separation, parties can seek court intervention to resolve the issue. The court has the authority to make various orders, depending on the circumstances. For instance, the court can grant an exclusive occupancy order, allowing one party to remain in the property while the other is required to vacate, regardless of the legal ownership of the property. This order is typically issued to ensure the stability and well-being of children or the safety of one of the parties.

In contrast, the court can also issue a non-removal order, preventing either party from removing the other from the property. This order aims to maintain the status quo and protect both parties’ rights until a final resolution is reached. Moreover, if one party has been locked out of a jointly owned property, the court can order financial compensation or reimbursement for expenses incurred as a result of being denied access. Finally, the court may order the sale of the property and the division of proceeds between the parties, effectively ending their co-ownership.

It is important to note that obtaining court orders requires legal proceedings, and both parties will have the opportunity to present their case and provide evidence of their respective positions. The court will consider factors such as the best interests of children, financial circumstances, and safety concerns when making these orders. However, this is likely to be a difficult and time-consuming process and may incur substantial legal fees.

Seek Assistance

Navigating property issues after separation in Australia can be complex and emotionally charged. While changing the locks after separation may be legally permissible in certain situations, it is essential to consider the implications and consequences of such actions, especially in cases involving joint ownership, children, or leased properties.

If in doubt, you should seek legal advice and explore mediation or negotiation options to resolve disputes amicably whenever possible. When disputes cannot be resolved privately, turning to the court system for orders regarding property occupancy is an option.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

How Mediation Can Help Resolve Your Family Law Matter

Mediation is a valuable and widely utilised method for resolving legal matters. This alternative form of dispute resolution is particularly valuable when it is desirable to maintain a relationship with the other party after the dispute, as is often the case in family law matters. Mediation offers a collaborative and less adversarial approach to addressing family law issues related to separation, divorce, parenting, property division, and more. This article explores how mediation works, when it can be used, the benefits it offers, what to do when it does not work or may not be appropriate, and how to prepare for family law mediation.

How Does Mediation Work?

Mediation is a structured process in which an impartial third party, known as a mediator, assists parties in reaching agreements on various legal issues. Typically, there are several different stages of mediation.

The first stage is the initial meeting between the parties and the mediator. The mediator will explain their role in facilitating communication and negotiation and describe the mediation process. The mediator may also use this opportunity to ask each party to outline their understanding of the issues in dispute.

The next stage of the mediation is information sharing. The mediator will prompt the parties to share relevant information, documents, and concerns about the issues. Transparency and open communication are crucial for effective mediation. For this reason, mediation is often undertaken on a “no prejudice” basis, meaning that the parties can freely share information to try and reach a solution, without this information being used against them in any later court action.

After the key information has been shared by both parties, the negotiation stage will begin. The mediator will guide discussions and help the parties to explore possible solutions. Skilled mediators use various techniques to foster communication and encourage compromise. This stage is usually the longest in duration and may take several hours or an entire day to try and reach a solution. 

Of course, the final stage of the process – the agreement – does not occur in every case. However, if the parties do manage to reach an agreement on one or more issues, the mediator will assist in documenting the agreement.

Parties who were not represented by a lawyer during the mediation will often seek independent legal advice at this stage to review the agreement before finalising it. Once the agreement is reviewed and accepted, it may be presented to the court for formalisation as a legally enforceable agreement.

When Can Mediation Be Used in a Family Law Matter?

Mediation can be used for a range of family law matters but is mostly used to negotiate parenting and property disputes.  Even if mediation does not result in a complete resolution for these matters, it often helps narrow down the issues in dispute, making court proceedings more focused and efficient.

Mediation is not only useful when there is a conflict, it can also be a good environment for separated co-parents to create parenting plans, make decisions about parenting, and agree on how to parent their children. Even parents with otherwise good co-parenting relationships may find mediation useful when dealing with some issues. For instance, co-parents who struggle to agree on one or two matters where each feel strongly (such as whether or not to raise their child in a particular faith) may benefit from the presence of a neutral third party guiding them to a compromise that works for both. 

Separated parties can also use mediation to negotiate the division of assets and liabilities, including the family home, finances, investments, and superannuation. Mediation can be particularly helpful when a property settlement involves complex issues. For instance, if a main asset in the property pool is a family business that must continue to operate to retain its value, dividing this asset may require complex negotiation to enable a fair and equitable outcome. Mediation can also allow discussion of issues such as spousal support, especially when this forms part of a broader agreement about the division of the property pool.

The Benefits of Mediation

Mediation offers numerous benefits. Perhaps most importantly, parties in a mediation have greater control over the outcome compared to other options such as applying to the courts for a decision about their family dispute. This control can give the parties a sense of empowerment and ownership of the solution, as they have actively participated in crafting an agreement that works for their unique situation.

The collaborative nature of mediation can also help to reduce animosity and improve post-separation relationships. This is particularly important for co-parents, who will potentially need to continue to work cooperatively for many years. Because mediation prioritises the best interests of the children and promotes child-focused solutions, it is consistent with the approach of the courts to parenting disputes. Of course, even in family cases where no children are involved, most parties will benefit from participating in a system which is less adversarial and inflammatory than traditional litigation.

Mediation often leads to a quicker resolution compared to lengthy court processes, which can take months or even years. As a result, mediation is generally more cost-effective than litigating in court, as it typically requires fewer legal fees and court-related expenses. Mediation is also more flexible than litigation, as it allows the parties to decide which issues are important and need to be explored.

Finally, as mediation sessions are confidential, they generally foster open and honest communication between parties. For some parties, the confidential nature of this process is of the utmost importance, as the issues included in a court case are a matter of public record.

When Mediation Doesn’t Work or May Not Be Appropriate

While mediation is effective in many family law cases, it may not always be appropriate or successful in every situation. For instance, if there is a significant power imbalance between the parties, mediation may not provide a fair forum for negotiation. In particular, mediation is often not safe in situations involving domestic violence, intimidation, or threats. Similarly, in cases where urgent decisions are needed, such as child safety concerns, immediate court action may be necessary. In such cases, seeking legal protection should be the priority.

In addition, mediation requires both parties to be committed to the process and willing to compromise. If one or both parties are unwilling to negotiate in good faith, mediation may not be productive. Finally, in some highly complex financial or legal matters, mediation may not be the most suitable vehicle for resolution. Such cases may require the expertise of a family lawyer and, potentially, court intervention.

Preparing for Your Family Law Mediation

It is advisable for all parties to seek legal advice prior to mediation. Even in cases when lawyers will not be at the mediation, it is still wise for each party to consult with a family lawyer before mediation to understand their rights, responsibilities, and the potential legal outcomes.

Both parties should ensure that they collect all relevant documents, financial records, and information about the issues to be discussed. A solution is much more likely to be reached on the day if exact figures and facts can be provided.

There is also emotional and mental preparation required prior to a mediation. A successful mediation is more likely when the parties have prepared emotionally for the process, understanding that mediation may involve difficult discussions and compromises. Each party should identify their goals and priorities for mediation, including what outcomes they hope to achieve (the “best case” scenario) and the outcome that they can accept (the “worst case” scenario).

If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

Attending Compulsory Family Dispute Resolution – what to expect

Separating couples should make reasonable attempts to agree on the future living arrangements, care and responsibility for their children. The Family Law Act 1975 (Cth) provides that, unless there are extenuating circumstances, dispute resolution is compulsory if agreement cannot be reached, prior to bringing an application for parenting orders to the family law courts.

Divorce, de factos and superannuation splitting

Once a couple is separated, their superannuation (super) is treated as property under the Family Law Act 1975 (Cth) and the value of the couples’ super benefits will be taken into account when determining a property settlement. Laws regarding super splitting apply to both married and de facto couples.

Super is held in trust and this type of arrangement differs from other types of property – there are rules that govern when a party is able to access their super funds.