This is actually the hard part for most people — seriously, this is not easy, and it takes time. Don’t expect any of these arrangements to be agreed on overnight, in the first week, or even in the first month or two. For some, this part of the family law process can take months or years. You might have to weather conflict, high emotions, and tension on the way; this should not be surprising, given that the things that you hold dear, your children, and your and their future security and comfort, are being negotiated. Reaching a deal in a highly emotional situation can be very difficult, but it is never impossible. We negotiate and settle what seems like impossible and complex circumstances all the time. There is hope!
If I had a dollar for every time a client said to me, ‘This is the most difficult matter you will have had — I hope you can handle it,’ I would be a millionaire! I guarantee it is nothing that I or any other family lawyer has not seen or heard before. In family law services, it is important to never be intimidated, we are here to assist.
Understanding the process, you need to go through will help you to get where you need to go. It doesn’t all have to end up with your going to court; in fact, most family law matters don’t go to court. And further to that, of all the matters filed in court in Australia, only a very small percentage, approximately seven percent, end up going to a trial. The majority of matters filed in court get resolved by consent during the court process, which means that a judge has not been the one to make the final decision. The parties have made the final decision through negotiations, albeit outside of the courtroom doors.
There is no guarantee your matter will stay out of court: it totally depends on each of you. There are certain times, as a lawyer, that I will advise a client that if they want legal protection and a result, there is no option but to file an application in the court. For some this is true. You cannot negotiate when only one person is communicating openly and effectively — both parties need to be open to negotiations and ready to communicate as to what they each want, either directly with each other or through their various representatives.
In any negotiations, put yourself in the other person’s seat and see what their interest is.— Diane von Furstenberg,
There are many ways to resolve your family law matter, and all of them involve communication. If your matter is not urgent, I would recommend trying each of the following steps, in this order, to resolve your outstanding issues.
1. Kitchen-table negotiations – this is talking with each other. If this fails,
2. retaining a lawyer to help you negotiate. If this fails,
3. formal round-table negotiations. If this fails,
4. attend mediation for further assistance. If this fails,
5. file an application with the Federal Circuit Court.
I will explain each of the above options in further detail. I believe that it is important for you to understand all the different people you could encounter in the family law process and what each of their roles is, so at the back of this book, along with a glossary of legal jargon, you will find a list of people working in the field and how they might help you.
There are many ways for you to move through this negotiation process. This flow chart shows you the possibilities.