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Published: 13 November 2017
Author: Cherieanne Carmichael
It’s beginning to look a lot like Christmas, as it’s typically the busiest time in family law in Victoria.
Every October and November, we are approached by clients from all walks of life and for myriad reasons seeking to formalise their divorce.
Everyday life has become so busy that for some couples the year is coming to a fast close and finalising their divorce agreement is a final protocol costing around $2-$4K and marks they are ready for closure. For others, it can be a process filled with heartache and/or rage that is triggered by the prospect of a new year ahead and one or both parties seeking a fresh start. It’s also common for clients to approach us about the divorce process before they may have discussed the prospect of separating with their partner.
For some families, Christmas can trigger much angst and conflict on where the children are spending Christmas Day and the holiday period.
For three months leading up to Christmas, marketers and advertisers sell the notion of the importance of family on Christmas Day and for some families it’s the first time their family will be separated which can be liberating for some, and confronting for others. The reality of shared parenting is that negotiating children is an ongoing process that usually requires diplomacy.
According to the 2016 Census, of people in Australia aged 15 years and over:
The Australian Bureau of Statistics reported in 2015:
The 2016 Census showed:
In summary, while the divorce numbers are going down, so too are the numbers of people choosing to remain single.
In decades of practicing law, I now know that every family is unique and no two cases are the same.
If a couple separate mutually and see financial, property and children’s custody issues the same way and arrive at our office with a written agreement in place, consent orders can be arranged quickly and we then make an application for a court order. Despite common belief, we do so a lot of cases that settle with ease and pace.
However, divorce proceedings can take a long time to settle depending on the parties concerned and the matters to settle. Many clients seeking closure before the New Year often approach us a little too late as the Court closes prior to Christmas and the waiting time can be long, so this often doesn’t leave us enough time to settle before the Christmas break.
A formal route to divorce involving court takes time and is often required when:
We recommend clients try and settle their own agreements and parenting plans before meeting with a lawyer.
Some couples try and come to an agreement for weeks or years, and to no avail which is when mediation is recommended.
One party can try and book mediation via Relationships Australia and Oz Child which are both subsidised by the Government and provide services designed to empower couples to negotiate directly with the assistance of a skilled facilitator. The other party is under no obligation to attend, however efforts need to be made to seek resolution via mediation before a matter will be heard in court.
Mediation provides a safe space for both parties to listen and be heard by one another. A mediator cannot force anyone to agree but can assist with writing up agreements on where the children will spend Christmas and other parental matters. From here, the couple can agree to have an informal arrangement or may prefer to take the agreement to a lawyer to arrange more formal consent orders which give some parties greater certainty and peace of mind. It’s also worth noting that anything raised in negotiation cannot be used in a court room without prejudice. This creates greater freedom to negotiate.
If the mediation is unsuccessful, a client can independently hire a lawyer. The lawyer will then write to the other parent and suggest ideas and alternatives for the resolution and will endeavour to enter into negotiation.
If legal representation cannot resolve the matter, the next step is to issue proceedings in the Family Court or Federal Circuit. Leading up to a trial, all parties have some input but when the matter goes to court with a judge, each party loses control as they are beholden to the evidence presented and witnesses present.
It’s important to go in to the settlement with good faith. Negotiation is an art that is best achieved when both parties agree to compromise. For any negotiation to work both parties need to give and take.
In family law, nobody ever gets what they want – whether making your own agreement, mediating or settling in court – all parties will need to compromise what they want to move forward.
Separating your family is emotional and when people are emotional it’s easy to antagonise each other. When it comes to venting emotions in negotiations, the less said the better.
It helps to start negotiating Christmas Day and the school holiday arrangements very early. Depending on the age of the child, it’s too much pressure for a child to decide what’s in their best interest. However teenage children are more likely to be more vocal about their preference on where to spend the holiday period.
All good family lawyers seek agreements out of court if they are fair to their client and in the interests of the children.
There is a growing trend towards collaborative law which can also be a less adversarial and more affordable option.
A good lawyer tells their clients not what they want to hear, but what their most likely realistic options are and how they foresee the case unfolding in a manner where the client can best move forward with their lives.
To arrange an appointment to discuss any matters related to family law, please contact Stringer Clark on 1800 641 743 or via email.
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