As a family lawyer, I’ve found we see an increase in client enquiries in January including new clients and people returning to us for legal advice who haven’t yet taken action to progress their separation. In January, they are ready to proceed and want to start taking the steps to move forward because the holidays may have brought up some issues regarding parenting or financial arrangements or parents are seeking the peace of mind about what may occur with their children prior to the commencement of the school year. It’s always best to speak to your lawyer as soon as possible to try and come to an agreement because any delay you may have in this process can have an impact on the outcome.
The new year is a natural time to reflect on what you want to achieve in the year ahead and how best you can go about it. This might involve attending a parenting mediation, getting financial advice, seeing your accountant and taking the steps towards progressing towards a settlement or mediation with your ex-partner.
Where to start?
The best place to start is usually to meet with us so we can provide you with guidance about best way to progress your separation. Generally, we give our clients options including referrals to mediators who might be best suited and able to assist in mediating your parenting arrangements for the year, if that is appropriate for your circumstances.
When clients come to see us at the beginning of January they may not get a mediation date before the school year begins, but certainly, in the early first half of that year, you may be able to get arrangements in place or clarity on parenting arrangements going forward.
What mediation options are available?
With mediation, you can do it through a government-funded body such as Relationships Australia or the Family Relationships Centre. There are also private mediators who charge a fee, but they often don’t have the significant waitlists compared to the government-funded centres. Private mediators can allow parents to get clarity about parenting arrangements moving forward as quickly as possible, which is obviously in the children’s best interests and can give parents peace of mind.
The wait times for government-funded mediation could be months but generally people can get a mediation date within a month through a private mediator. As family lawyers, we often make calls on behalf of the client to find the best suited, available mediator for them. Our firm has good working relationships with mediators so often even if they don’t have availability, we can call the mediator and ask that they contact us if anybody cancels.
Whilst it might seem like an unnecessary expense to engage a private mediator with no guarantee that you’re going to reach an agreement, what can eventuate is that you may be able to reach an agreement about several issues with only a few issues remaining to be decided. So even if you don’t walk out with a full agreement from that mediation day, you might at least know where the issues are so that you can minimise the number of issues that need to be addressed with your lawyer.
Related: Can you avoid Court when separating?
Mediation can improve communication
People often use mediation as the opportunity to talk to the parent about what their concerns are about the children. It might be that following mediation, the parents agree to attend family therapy with a counsellor so that they can work on their co-parenting relationship. This can help if they are having trouble communicating and want to learn how to deal with communicating with each other in the future.
Family therapy can also involve the children if the family therapist considers it appropriate. In circumstances where there are significant waiting lists with the Court, a lot of families are turning to this option now because it has a very high success rate. You are able to address the issues that arise in a timely manner as opposed to waiting, months, if not years, to make the final determination. However it is important to ensure you have obtained advice about where you stand and are informed about your options prior to embarking on this process.
How is a family lawyer involved in the mediation process?
Most of the time clients will go through mediation without having lawyers present, but this can come down to the client’s preference in terms of what they want to do. Obviously resolving parenting arrangements by way of meditation by themselves is the cheapest alternative. However, speaking to your solicitor prior to mediation is recommended as you can discuss what you would like to see in place for the children and get some advice around whether something is going to be considered appropriate and what might happen if you don’t reach an agreement at mediation.
As a family lawyer, we often prepare a draft parenting agreement so that the client can take that to mediation and they can work off the document, to see if they can reach an agreement. As mediation is a confidential process, anything that they say in mediation can’t be raised before a Court. So a client has some security in terms of being able to be somewhat open and frank in terms of what they want to do throughout this process.
When you’re in mediation it’s good to have an understanding of what the expectations are from the law, so the mediator is not bringing that to your attention on the day, as that could be quite overwhelming in what is already a highly stressful situation. With prior preparation, you can walk into the mediation contextually understanding what is likely to happen.
If you choose to attend the mediation without lawyers present, that doesn’t stop you from being able to contact us by telephone on the day. So if there are proposals going backwards and forwards, you should not feel pressured to enter into an agreement. Pick up the phone, give us a call and tell the mediator that you are just going to run something quickly by us. I find that the mediators don’t tend to have an issue with you doing this to seek clarity, rather than reaching an agreement and then having buyers remorse the following day when you speak to us. We might tell you something that would have made you not agree to part of the arrangement had you understood it fully or you could have sought a slight amendment to it. This is far easier to address during the process than after a mediation has concluded.
Taking the first steps in the financial settlement process
While parenting arrangements are often the place to start when a couple with children separates, getting started with the financial side of things can also help to feel you are on track for new beginnings this year. If you haven’t already provided them, then disclosure documents would be the first step in the process. We would also have to get the disclosure documents from their former partner. That might involve us having to write to the former partner or former partner’s solicitor to say we need the documents.
Once parties have exchanged their disclosure documents, we then are able to get an idea as to what is the property pool available for distribution. Depending on what is in the property pool it might be that at that time we would recommend the client get some financial advice, either from a financial planner or an accountant to work out what is going to be best for their specific circumstances in terms of property settlement. This helps to then be able to put forward an offer of a property settlement.
Alternatively, parties may prefer just to go to mediation with lawyers present, to try and see if they can come to an agreement in a day, as opposed to going backwards and forwards between the parties and the parties respective solicitors in exchanging offers.
Property settlement can take time
Clients can think that a property settlement can be done quickly, but there is actually quite a lot of detail that goes into it. We find it is best not to rush these things as there are big decisions that need to be made that have a long term impact on clients’ lives. So the earlier that you get in contact with a lawyer who specialises in family law, the earlier that we can get the ball rolling on the financial settlement.
Of course, there are times where people can reach an agreement fairly quickly but it can take longer than reaching a parenting agreement because you have certain steps that need to be undertaken in terms of disclosure before we are in a position to give advice about your range of entitlements.
Related: Managing financial disclosure during your divorce
If you start the settlement process now, by this time next year you could be approaching the holiday season with significantly more clarity. With measures in place, that will minimise the risk of any issues that may have occurred over the recent holidays and you can feel positive about the year ahead.