Separating married couples and de facto partner in Australia have several ways to sort out parenting and property: negotiating between themselves, negotiation through lawyers, family dispute resolution, collaborative practice, arbitration, or going to court. The options differ markedly in cost, time, control over the process and certainty of outcome. As a rule, the more the parties cooperate, the lower the cost and the faster the progress; the bigger the dispute and the more you rely on a court decision, the higher the cost in money and time. Whichever path you take, the agreement must be formalised in a legally recognised form before it becomes binding.
Legal framework
These processes are governed by the Family Law Act 1975 (Cth), and the Federal Circuit and Family Court of Australia has jurisdiction. The Court's rules require parties to complete pre-action procedures, including trying to resolve the dispute, before starting property proceedings. In parenting matters, parties generally must first attend family dispute resolution and obtain a section 60I certificate. Divorce is a separate process, dealt with apart from parenting and property.
How the options compare
Negotiating between yourselves
The parties talk directly and reach agreement. This is the cheapest and most flexible option. But a private agreement is not legally binding on its own, and if a property settlement isn't formalised by consent orders or a Binding Financial Agreement, either party can still apply to the Court later. parenting plan can record what you have agreed about the children, but it can't be enforced like a court order either.
Negotiation through lawyers
Each party engages a lawyer, disclosure is exchanged and negotiations happen through correspondence or meetings. This suits situations where you need professional help to assess the asset pool or protect your interests. Costs rise with the complexity of the dispute and the amount of back-and-forth.
Family dispute resolution
A neutral, accredited mediator helps the parties communicate and find an outcome they can both accept. You can have your lawyer with you, and mediation can also be done as shuttle mediation or online. Mediation is usually quicker and cheaper than going to court, and the parties keep control of the outcome. What is said in family dispute resolution is generally confidential and can't be used as evidence in court, unless the law provides otherwise.
Collaborative practice
The parties and their lawyers sign a participation agreement, committing not to go to court and to resolve the issues through a series of joint meetings, bringing in financial advisers or counsellors where needed. If the process breaks down, the collaborative lawyers usually must withdraw, and the parties need to engage new lawyers for court proceedings.
Arbitration
The Family Law Act 1975 allows property and maintenance matters to be arbitrated. An accredited family law arbitrator chosen by the parties makes a decision, called an award, which can be registered with the Court. Arbitration generally isn't available for parenting matters. It offers flexible timing and a private process, but the parties pay the arbitrator's fees.
Court proceedings
Court may be necessary where agreement isn't possible, there is Family violence or urgency, or you need to compel disclosure or freeze assets. Court usually costs the most and takes the longest, a judge decides the outcome, and the parties have the least control. Even once proceedings have started, the Court still lists matters for conciliation conferences and similar events, and many cases settle before trial.
How to make an agreement binding
- Consent orders: You apply to the Court, and if it is satisfied the orders are just and equitable (and, for children's matters, in the best interests of the child), it makes the orders. They have the same force as orders made after a trial.
- Binding Financial Agreement: Made under Part VIIIA of the Family Law Act 1975. Each party must get independent legal advice, and strict formal requirements must be met.
Factors to consider when choosing
- Whether there is family violence or a clear power imbalance between the parties;
- How complex the assets are, for example companies, trusts or overseas assets;
- Whether parenting or interim arrangements are needed urgently;
- How well the parties can communicate and how much they trust each other;
- Time limits for property applications: generally 12 months after a divorce order takes effect for married people, and 2 years after separation for de facto partners.
Information to prepare
- The date of separation and the relevant facts;
- Details of income, assets, liabilities and superannuation;
- Current care arrangements for the children;
- Any intervention orders or other court orders.
How we can help
We can weigh up the pros and cons of each option for your situation, negotiate on your behalf, attend mediation with you, draft consent orders or a Binding Financial Agreement, and represent you in court if needed. Justin Chua is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner. Mediations are conducted in English and Mandarin, and our lawyers also advise in Cantonese. For more information, see our family law services page.
FAQs
What are my options after separation if I don't want to go to court?
You can negotiate between yourselves, negotiate through lawyers, or use family dispute resolution, collaborative practice or arbitration. These options are usually quicker and cheaper than court, and give you more control over the outcome. To be legally binding, any agreement must be formalised as consent orders or a Binding Financial Agreement.
How does family dispute resolution work?
A neutral, accredited mediator helps the parties communicate and find an outcome they can both accept. You can have your lawyer with you, and mediation can also be done as shuttle mediation or online. It suits parties who can still communicate and want to keep control of the decision.
Can family law arbitration deal with parenting arrangements?
Generally, no. The Family Law Act 1975 allows property and maintenance matters to be arbitrated by an accredited family law arbitrator chosen by the parties, and the award can be registered with the Court. But arbitration generally isn't available for parenting matters.
When should I go straight to court?
Court may be necessary where agreement isn't possible, there is family violence or urgency, or you need to compel disclosure or freeze assets. Court usually costs the most and takes the longest, and a judge decides the outcome. Even once proceedings have started, the Court still lists matters for conciliation conferences and similar events, and many cases settle before trial.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
简体中文 
English (Australia) 
繁體中文