Your end goal after you or your partner make the decision to divorce or separate, is to reach an agreement together and consider making it official.
Couples that end up in court are there because, for whatever reason, they’ve been unable to reach an agreement together, and one of them has asked the court for a judge to make a decision for them.
Let’s say you and your partner have kids together and you can’t reach an agreement about their care arrangements. You would normally be required to attend mediation first to try and reach an agreement before either of you can ask the court for a judge to make a decision.
If you go to mediation and can’t agree, or mediation isn’t appropriate for whatever reason, or you or your partner refuse to participate, then you can ask the court for a judge to make a decision for you without going through mediation, which they will do in the form of a parenting court order.
In very broad general terms, to get the court involved you both have to prepare paperwork that sets out what you want as a final parenting outcome, and gives evidence justifying your desired outcome. This paperwork is submitted to the court, and you and your partner then have to attend a court hearing, where a judge may make court orders that are intended to help steer you in the direction of a decision about your children’s care arrangements.
Often the court will require you, your partner and your children (and potentially any other significant person in your children’s lives) to meet for an interview with a child expert (a court-appointed family consultant). The child expert will provide a written report with recommendations regarding your children’s care.
Many parents use this report to reach an agreement together without having to go to trial and have a judge make a decision for them.
For those parents who are unable to agree, the judge will consider the expert’s report, together with evidence from each parent, and make a decision that leads to a parenting court order.
Let’s say you and your partner can’t agree about the split of your finances. Before asking the court to make a decision for you, you have to exchange your financial documents.
Before starting the court proceedings, ‘all genuine efforts to resolve the matter [must] have failed’.
Similar to parenting disagreements, in order to get the court involved, you and your partner have to prepare paperwork that sets out what you want as a financial split, and provides evidence justifying your outcome. This paperwork is submitted to the court.
You and your partner then have to attend a court hearing date, where a judge makes orders intended to steer you in the direction of a decision being made about an appropriate financial split.
The court may order that you and your partner attend a financial mediation. Where this financial mediation is to occur before a registrar (being a lawyer of the court), it is called a conciliation conference.
According to the Federal Circuit Court’s 2017–18 Annual Report, 36 percent of the registrar-facilitated conciliation conferences settled—meaning 36 percent of those separating couples who had initially asked for a judge to make a decision for them—managed to reach an agreement about their financial split at their conference.
If you don’t reach an agreement at the financial mediation, usually you have to return before a judge who’ll make orders listing your matter for trial in twelve-plus months’ time.
The good news is that only about 25% of couples actually end up proceeding to trial before a judge, who then makes a decision for them about their financial split or parenting.
Bearing in mind that 75% of couples therefore end up reaching a separation agreement between themselves when they’re in the court system, it makes sense to try and resolve your dispute outside of the court system. Imagine all the money you could save in legal fees!
Getting initial legal advice can give you a reality check and help you manage your own expectations about what an appropriate outcome looks like according to the law. You can then use this reality check to help reach an agreement with your partner, avoiding court and minimising fees.