Dispute Resolution & Collaborative Law - Blanchfield Nicholls Family & Private Advisory

At the end of most marriages or relationships, couples will need to come to an arrangement for the division of their property (including superannuation and other assets), spousal maintenance (if applicable) and child support for any children, and other related matters. If children are involved, many parents need to make ongoing arrangements for regarding the time they will spend or live with the other parent.

All couples and families seek to have a speedy and cost-effective resolution of their family law matters. Blanchfield Nicholls will always give appropriate advice for your family’s situation on the best way to resolve your dispute. In practice this includes guiding and advising you on reaching a negotiated settlement with your partner, rather than relying only on traditional court processes.

Negotiated settlements can be as simple as writing a letter to your former partner’s lawyer with a proposal settlement. Other times a round-table meeting is organised to try and resolve matters face to face.

If however your family needs a more formal process to resolve your dispute Blanchfield Nicholls can guide, advise and represent you across the full range of family law dispute resolution processes available.

Formalising your family arrangements

Many separated and divorced parents do not feel it necessary to have any formal agreement in place for their children and simply come to an informal arrangement between themselves.

However, family circumstances can change, and you may need to call on some legal professional assistance to formalise arrangements by creating a parenting agreement.

There is no legal requirement for a particular arrangement to be in writing, but you may wish to have a written Parenting Plan in place or obtain Consent Orders from the Federal Circuit and Family Court of Australia.

As experienced family law practitioners Blanchfield Nicholls can advise and guide your family’s arrangements.

What is a Parenting Plan?

A Parenting Plan is an agreement in writing between the parents of a child, or children, and can include agreement on:

with whom a child is to live
the amount of time a child is to spend with a parent or particular family members
parental responsibility for a child
the form consultations will take in order to make decisions about parental responsibility
the communication a child is to have with another parent or family member
maintenance of a child (or child support)
the process for resolving disputes about the terms or operation of the plan.

A Parenting Plan is not usually enforceable by a Court but can be considered in any subsequent Court proceedings.

Parents who believe that they may need the Court’s assistance to assure that parenting arrangements are adhered to may wish to take the step of having their parenting agreement recorded as a ‘Consent Order’.

A Consent Order is made as an administrative application to the Court and does not usually require a Court appearance.

What is a consent order?

Consent Orders are binding and enforceable Court Orders agreed by parents and cover the same issues as a Parenting Plan, but they usually cannot deal with child support or maintenance.

Formalising your Finances through agreements

It is recommended that, if you have reached a property settlement that it be recorded as a Consent Order as it will, in most cases, finalise the financial relationship between you and in most cases prevent a financial claim by your former partner in the future. A Financial Agreement, which is a particular type of agreement made under the Family Law Act, can also be used to document a property settlement and to deal with spouse maintenance.

While child support is usually dealt with under by the Child Support Agency through an assessment, parties can also make their own arrangements with a Binding or Limited Child Support Agreement.

Without formal agreements in place there is the potential, sometimes years later, for aspects of your financial arrangements to be contested.

Blanchfield Nicholls is ready to guide and advise you on your rights (or obligations) under parenting agreements, consent orders and financial agreements.

Collaborative family law

Collaborative family law is an alternative to the Federal Circuit and Family Court of Australia offering a non-adversarial and dignified approach to resolving the issues that arise out of relationship and family breakdowns.

What is collaborative family law?

In a collaborative family law process, each party and their lawyer agree to work together to find a fair solution to any financial or child-related issues without involving the Federal Circuit and Family Court of Australia.

A collaborative family law approach allows for a greater degree of co-operation and support from a range of professionals including child specialists, counsellors, accountants and financial advisers who bring their expertise to the process. This means, as your legal advisers, Blanchfield Nicholls is free to concentrate on helping you where you need it most – legal negotiations and advice, to lead you to a child-focused resolution of custody issues and a fair financial settlement.

How does collaborative family law work?

You and your partner each retain your own family lawyer to advise you throughout the process. You, your partner and your lawyers will all sign a Participation Agreement setting out the ground rules for the collaborative family law process. To further ensure your lawyers look after your best interests the Agreement stipulates that if either client commences Court proceedings, both collaborative lawyers are disqualified from representing either client in further proceedings.

Underpinning the collaborative process is an understanding that you and your partner (and your respective lawyers), will act in good faith, be open and honest in your dealings with one another and respect that different views will need to be expressed to achieve a fair settlement.

Most negotiations take place in face-to-face meetings between you, your partner, the lawyers and a coach. Once a settlement is reached, the lawyers will draw up a Settlement Agreement which will usually be submitted to the Court for approval and made into a Consent Order.

Blanchfield Nicholls lawyers are among Sydney’s leading collaborative family law experts.

Mediation

Family law mediation is a non-binding dispute resolution process, where a neutral third-party assists clients to reach agreement about issues in dispute such as financial and parenting issues.

Mediation can be voluntary, but frequently the Court will direct parties to attend a mediation process. It is usually also compulsory to attend mediation (Family Dispute Resolution) before Court proceedings can be issued in parenting matters. Sometimes parties will attend mediation by themselves, but a mediation can also be organised where lawyers also attend. There may be one meeting or a series of meetings.

An agreement reached at mediation will usually be documented in a Financial Agreement or Consent Orders.

Going to Court

In some family law cases, there is no alternative to Court proceedings, either because parties have very different views about what an outcome ought to be or they need the Court’s formal processes to achieve a resolution. Sometimes there are urgent matters that need an early interim Court decision.

Australian Court proceedings can be expensive and take longer than people expect (as much as two to three years from filing to a Judge making a final decision). The Court process has various checkpoints where parties are encouraged to come to an agreement before a Judge is required to make a decision, such as obtaining a Court ordered report or through conciliation or mediation.

In fact, fewer than 5% of cases that are filed with the Court will proceed to a final hearing.

As your lawyers Blanchfield Nicholls will always discuss with you when Court is, or is not, in your and your family’s best interests and what dispute resolution alternatives, including collaborative law, will be most appropriate.

Arbitration

Arbitration is another type of formal alternative dispute resolution where an independent and neutral arbitrator decides a dispute between parties. It is a more formal process than collaborative family law or mediation as it is essentially the appointment of a private ’Judge‘ to determine the matter.

In the family law context, at the present time arbitration can only be used for financial matters and not parenting disputes.

While arbitration is quicker than traditional Court processes, which can take as long as 2 – 3 years given current Court delays, parties are expected to pay the arbitrator’s costs themselves.

Appealing an arbitrator’s decision can only be made on ‘legal’ grounds and not simply because a party does not like the arbitrator’s decision.

Blanchfield Nicholls is experienced in the arbitration of family law disputes and can advise if arbitration is right for you and your family’s situation.

For a confidential discussion about your family’s situation, please get in touch.