The overarching purpose of the family law practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
With this purpose in mind, MFL will always strive to find the most efficient and effective way to assist clients to resolve or finalise their family law cases.
There are a range of pathways or processes to resolve every family law matter being negotiation, mediation, collaborative practice, arbitration and litigation determined by a Judicial Officer.
More than one pathway or process may be necessary to resolve or finalise a matter. MFL has the expertise and experience to guide you and strategise with you throughout your family law matter as to the best way for you to proceed.
Negotiation
Resolution may be achieved via negotiation directly with your former partners (colloquially, “over the kitchen table” or with the assistance of lawyers. An agreement can be negotiated in relation to terms of financial and or parenting arrangements. Our office can then carefully draft the required settlement documents to give effect to the agreed settlement and ensure your interests are protected.
Alternatively, upon completing the disclosure process (production of information and source documents) and ensuring all items of property are either valued by a single expert valuer or there are agreed values, we will negotiate on your behalf with your former partner or their lawyer to achieve your best case outcome. In the event the negotiations do not reach a resolution you may need to proceed through one of the other pathways set out below.
Mediation
Mediation involves you and your former partner meeting with an experienced mediator; with both sides seeking to reach an agreement “out of court”). Lawyers will usually be in attendance to advise their respective clients at mediation and to draw up the required settlement documents to file with the Court if an agreement is reached. Mediations are used in both financial and parenting disputes.
In the event that an in-person or face-to-face mediation is an unsafe option for one party or impractical because of distance, alternative arrangements can be made for video based mediation.
Preparation for mediation includes completing disclosure and valuation.
Collaborative Practice
Collaborative Practice is a tailored case process where the parties and their lawyers, who are trained and accredited in collaborative law, solve disputes in financial or parenting matters “out of” Court.
Collaborative Practice enables both parties to work together, with their lawyers, to achieve the best outcome for them both.
“By treating everyone involved with respect, Collaborative Practice enables participants to solve disputes in a way that preserves their dignity and avoids the stress of litigation”: Australian Association of Collaborative Professionals
Collaborative Practice involves a different procedure to solving issues through the courts system. At the outset, all parties sign a Participation Agreement, wherein everyone agrees to behave in a respectful manner to each other and provide the relevant information needed to create a fair agreement at the end.
Parties and their lawyers will communicate with each other in face-to-face meetings, telephone conferences, and written correspondence. There will be four way-meetings in which everyone can share their views, concerns and important information in order to reach an agreement. Once an agreement is made, it can be made into a legal order by a judge.
In addition to lawyers, other professionals may be engaged to look after the needs of both parties (and their children) and ensure the best possible outcome for all involved. These may include child consultants, financial advisers, accountants, psychologists, or coaches.
In Collaborative Practice, the individual physical, emotional and psychological needs of the children can be carefully considered. Additional professionals may be brought into the process to ensure the children’s best interests are met. Through avoiding litigation procedures, it makes it more likely that parties will avoid conflict between themselves, and maintain a civil, working relationship and avoid or minimise exposing the children to parental conflict.
Arbitration
Arbitration involves a private determination of a case at a hearing where the Arbitrator can make a binding decision, outside of the Court system. Usually the Arbitrator appointed is a retired Judge or Senior Counsel. Arbitration is a case process option to avoid the delays and expense associated with a contested trial in the Federal Circuit and Family Court of Australia.
Traditional Litigation
There are some matters where litigation is necessary or cannot be avoided. This may be due to interim financial or parenting issues, complex issues of law, unacceptable risk issues for children or conduct by a party to the proceedings. Usually parties proceed to litigation after attempts at negotiation and mediation have been unsuccessful. Millyard Family Lawyers will expertly guide you through the litigation process including developing a strategic plan to achieve your best case outcomes. Our firm has earned a reputation for expertise, tenacity and dedication in complex and difficult cases.
Notwithstanding that a matter proceeds to litigation, through our firm’s strategic planning, the matter may still be able to be settled on terms that you are satisfied with without requiring a judicial determination.
Per the Family Law Case Management Central Practice Direction of the Federal Circuit and Family Court of Australia, other than urgent applications and cases allocated to specialist lists, in the absence of an order or direction from the Court to the contrary, the following court listing pathway will apply to family law proceedings:
3/27 Shields Street,
Cairns, QLD 4870
PO Box 6575,
Cairns, QLD 4870
Millyard Family Lawyers respectfully acknowledges the Gimuy Walubarra Yidinji and Yirrangangi people as the Traditional Custodians of the land, seas and waterways on which our office and surrounding area stands. We pay our respects to Elders past and present and extend that respect to all First Nations people.
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