Should we collaborate?

22 MAR 2019

 

Family Law continues to be a subject of scrutiny within Australia. The resources of the Family and Federal Circuit Court have declined, divorce rates continue to increase and a pause button is placed on the lives of families across Australia. So if this is a problem here, are efficient methods being incorporated elsewhere? The answer is yes.  One of particular success is Collaborative Family Law.

What is it?

Collaborative Family Law has been adopted in the USA, Canada, Europe and Australia as an alternative to traditional court litigation. It is a process that connects parties through face to face negotiations with their lawyers to narrow and resolve the issues important to the parties.  This can be both in relation to children and financial issues. Because of this, the parties involved must disclose all relevant information and be willing to resolve the issues.  Such issues do not have to be legal issues that the court would generally recognise.

In fact, prior to commencing the process the parties involved and their lawyers sign a “Participation Agreement" which is effectively a contract that states that neither party or their legal practitioners can go to Court by undertaking this process.  If required, experts and specialists may also be engaged in this process so that the interests of all parties are protected by getting expert advice. This may include financial planners, divorce coaches, psychologists, valuers and counsellors.

Benefits

  1. Clients are in the driver's seat. They pick the issues to be determined, the professionals involved and how often they need to meet at their own pace.  
  2. The parties must agree on how the professionals are to be paid and pre approve expenditure for all steps of the process.
  3. Non-legal issues are irrelevant.
  4. The processes are less stressful for everyone involved.  Practitioners do not need to accommodate to deadlines and a win-win outcome can be achieved rather than a win-lose outcome at the expense of one party.
  5. If one party intentionally withholds information their lawyer must stop acting for them or your lawyer can advise you to withdraw from the process and the settlement agreement can be overturned even after it has been approved by the court if the settlement had of been different if different information was available.
  6.  If both parties are cooperative and provide requested information in appropriate self-set time limits, the process is generally quicker and cheaper than going through the court based process.
  7. Clients are present at all times during negotiations and are empowered to participate in their own negotiation.
  8. As the process is future-focused, "needs" are considered by both parties in the context of the best outcome for the family as a whole.  This can in turn assist the parties in developing better communication skills.

Cons

  1.   The process can be expensive in the event it is unsuccessful.  
  2. The lawyers and any independent experts involved must withdraw from the matter completely should collaboration fail.The clients will then be required to engage in new lawyers and potentially new professionals if settlement is not reached.
  3. It is not advisable for matters involving family violence, there are children at risk of violence or abuse.
  4.  It is not suitable for parties who are hostile towards each other and denigrate each other or for people with serious mental health issues.
  5. Unlike litigation, clients have no access to Rules of Court to ensure access to information and documents (known as "discovery"), or compliance with processes.
  6. There is no authoritative decision-maker in the room.

Is it working? 

The process of Collaborative Family Law requires the parties to work together and recognises that this is in their best interests.  Because of this the process has been proven to be successful even as a developing concept. The goal is for the parties to determine their own future by working together and achieving a settlement.  If this occurs, then the risk of engaging in new legal practitioners and experts, further delays, expenses and the traditional court process is avoided entirely.

This may be the first time reading about collaborative law and given it is one of the newer alternatives to the court based process it is important to get appropriate legal advice to determine if it may be suitable for you.  Even if Collaborative Family Law is not suitable for you, the rationale behind the approach, encouraging parties to work together is something that the family law team at Marsdens Law Group can assist you with.

If you require more information on the above article contact Nevine Youssef on (02) 4626 5077 or nyoussef@marsdens.net.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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