Coming to an Agreement

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

This section provides information for people who have reached an agreement after separation about property, parenting or child support. It gives information about Family Dispute Resolution (FDR), how to formalise an agreement and when to get legal advice.

Informal agreements

Many family separations do not end up in a courtroom. The family law system places a strong emphasis on resolution outside of the courtroom. Not only can this be quicker than going to court, but it can also save both parties from the emotional and financial costs of going to court.

You can come to an agreement outside of court or without using dispute resolution services. You can choose whether to formalise that agreement or not. However, it is often advisable to seek legal advice on whether the agreement you’ve reached is fair, and whether you should formalise it to better protect you in the future. If not formalised, it is likely not enforceable.

Family Dispute Resolution (FDR)

FDR is a process which attempts to resolve a family dispute without the need for court proceedings. In family law disputes, this usually means mediation, although there are other types of alternative dispute resolution, such as collaborative law. FDR is confidential and anything said in an FDR meeting cannot be used in court proceedings later, with some limited exceptions.

How does FDR work?

The FDR process involves an independent third person (FDR practitioners must be trained and registered) who helps guide participants in identifying and discussing their concerns. Some features of FDR are:

• There is a structure to the discussion set by the FDR practitioner;
• Each party has the opportunity to express their opinions and concerns and say what they think will work best;
• The FDR practitioner ensures that the discussion is focussed on the issues and is free from verbal abuse;
• While FDR can be more effective if the parties are together in the same room with the FDR practitioner, you can request that you be in a separate room to the other party and the FDR practitioner can move from room to room to facilitate discussion.

Do I have to go to Family Dispute Resolution?

The Family Law Act 1975 makes it compulsory to make a genuine effort to resolve any parenting dispute before starting court proceedings, with some limited exceptions.

This means that unless you come within the exceptions listed in What are the exceptions to compulsory Family Dispute Resolution? below, you have to go to an FDR service.

Even if you don’t come to an agreement, FDR often helps you clarify the issues in dispute.

If FDR doesn’t work, or the other party refuses to attend, the FDR Service will give you a certificate, called a s 60I certificate. The FCFC requires this Certificate if you then decide to go to court. The certificate is valid for 12 months.

Although it is not compulsory to go to FDR about property or financial matters, many people also use FDR to resolve these issues.

For more information about the pre-action procedures required before starting a case in the Family and Federal Circuit Court of Australia visit: https://www.fcfcoa.gov.au/fl/pubs/pre-action-financial (for financial orders) and https://www.fcfcoa.gov.au/fl/pubs/pre-action-parenting (for parenting orders).

What are the exceptions to compulsory Family Dispute Resolution?

You can start court proceedings about children without attempting FDR if:

1. There has been abuse or there is a risk of abuse to a child;
2. There has been family violence or there is a risk of family violence;
3. The application is urgent;
4. A party to the proceedings is unable to participate effectively in FDR.

You will need to tell the Court why you haven’t attended FDR when you file your application in court. You will need to file:

• Your application; and
• An Affidavit, which is a statement of relevant facts, which you must sign in front of a lawyer of Justice of the Peace. This must set out why you have not gone to FDR.

If your situation involves one of these factors, lawyer-assisted dispute resolution may be more effective, or FDR may not be a suitable option at all.

You can find more information here:
https://www.familyrelationships.gov.au/separation/family-mediation-dispute-resolution

What is lawyer-assisted dispute resolution?

This is much the same as the FDR process described above, except that each party is represented by a lawyer. Legal Aid ACT provides a lawyer-assisted Family Dispute Resolution Program. The involvement of lawyers in the dispute resolution process means that matters where there is family violence are not necessarily excluded from Legal Aid’s FDR program.

Private lawyers also engage in lawyer-assisted dispute resolution which is often called collaborative lawyering. Usually this involves both parties and their lawyers agreeing not to start court proceedings and to focus on coming to an agreement instead.

Can the children be included in Family Dispute Resolution?

This is known as ‘child inclusive mediation’ and children may be included in the FDR process if both parties agree and if the FDR practitioner makes an assessment that it is appropriate to do this. If proceedings are later started in Court, the FCFC may order FDR that can also include the child or children. However unlike FDR outside Court, this is not confidential.

Is an agreement reached in FDR binding?

No it isn’t. But the agreement can be made legally binding, or ‘formalised’ in the ways set out below.

Formalising your agreement

Parenting Plans

Parents of a child are encouraged to reach agreements on matters concerning the child and minimise the possibility of present and future conflict under section 63B of the Family Law Act 1975. If you are able to reach an agreement about parenting arrangements for your children after separation, either between yourselves or after mediation, you may choose to formalise that agreement with a parenting plan.

A parenting plan does not have to use any formal legal language, or be submitted to any court or government body to be valid. It is simply a signed and dated record of your agreement and can be updated or discontinued at any time, to allow flexibility. It can cover any parenting issues, such as who your children will live with, how much time they will spend with the other parent, how you will make decisions about their health, schooling etc

A parenting plan is not enforceable by the Courts. However it is required to be taken into account by the FCFC if there is a dispute in the future before the Courts.

You can find more information here:
https://www.familyrelationships.gov.au/parenting/parenting-agreements

Consent orders

Consent Orders are orders made by the FCFC which reflect a formal agreement between the parties which is legally binding. They can be made in relation to parenting or property and financial matters. They can be made before court proceedings start, or at any time during court proceedings. Your agreement is written up, signed and dated and then lodged with the Court. Generally, Consent Orders made by the FCFC fall into two categories:

• Parenting orders: includes orders relating to the person with whom the child lives, the times a child may spend with a particular person, child maintenance (for children not covered by the Child Support (Assessment) Act, if you are unsure contact Services Australia Child Support) and any other aspect of parental responsibility (for further assistance see https://www.ag.gov.au/families-and-marriage/publications/parenting-orders-what-you-need-know); and
• Financial orders: includes orders relating to spouse maintenance (financial support for a party or former party to a marriage), de facto partner maintenance (financial support for a party to a de facto relationship which has broken down) or property. There are special requirements for financial orders for a party to a de facto relationship: for further assistance see https://www.fcfcoa.gov.au/fl/pubs/defacto.

There are several orders which cannot be formalised through an Application for Consent Order:

• Child maintenance for children covered by the Child Support (Assessment) Act (if you are unsure contact Services Australia Child Support);
• Declarations about the existence of a de facto relationship;
• Medical procedures;
• A parenting order in favour of a person who is not a parent, grandparent or other relatively under s 65G of the Family Law Act 1975.

When deciding an Application for Consent Orders, the Court must be satisfied that:

• For parenting orders , the arrangements are proper; and
• For financial orders , the arrangements are just and equitable.

If you have agreed on Consent Orders before starting Court proceedings you will need to file an Application for Consent Orders, as well as the Orders themselves. For information on how to file an application with the FCFC see: https://www.fcfcoa.gov.au/hdi/apply-consent-orders. More information about how to develop orders can be found here: https://www.ag.gov.au/Publications/Pages/Parenting-orders-what-you-need-to-know.aspx.

If you are filing a consent order for a financial order, the application should be filed within 12 months of a divorce or 2 years since the end of a de facto relationship . If you are filing beyond these time frames, you will need to seek permission of the Court to file the application.

The FCFC has a ‘Do it Yourself’ kit to assist with making an Application for Consent Orders. Note that parenting and financial orders can be sought together in the same application.

Consent Orders or a Parenting Plan?

If you think that the other party will abide by the agreement you have reached about the children, then a Parenting Plan is a good option as it clearly records your agreement, but it can be changed by agreement at any time. It has more flexibility.

If you have concerns that the other party may not abide by the agreement you have reached about the children and want to ensure that the agreement can be enforced, you would choose to formalise it with Consent Orders.

More information is available here:
https://www.fcfcoa.gov.au/fl/children/agree.

Consent Orders – Parenting

If you are applying for a Parenting Order, you must consider and demonstrate to the court what is in the best interests of the child. Section 61DA(1) of the Family Law Act 1975 states that the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in:

• Abuse of the child or another child who, at the time, was a member of the parent’s family (or the other person’s family); or
• Family violence (s 61DA(2) of the Family Law Act 1975).

Consent Orders – Property

Many people choose to formalise the division of their property after separation through Consent Orders. This creates a final settlement of any financial relationship between you, which is legally binding. Consent orders can also be used to ensure you do not have to pay stamp duty if the family home is transferred to your sole name.

An application for consent orders in relation to property consists of the Application for Consent Orders Do It Yourself kit available at the Family Court Website, as well as the draft orders.

All orders must be drafted in language that is acceptable to the Courts. Consent orders cannot just reflect an agreement. The Court will not make orders that are not in the correct language and will request that you amend the orders to be in the correct form.

Before you submit an application for consent orders, it is a good idea to get some legal advice about whether the proposed division of assets is a just and equitable outcome for you.

Binding Financial Agreements (BFA)

These can be quite complex and you should get legal advice. A Binding Financial Agreement can be made:

• Before starting a relationship;
• During a relationship;
• At the end of the relationship.

It can deal with how property is to be divided, financial support and can include child support.

The intention of a BFA is that the agreement is final, and the parties cannot go to the FCFC to ask for orders that differ from the terms of the BFA. There are strict conditions that must be satisfied to make a BFA enforceable:

• That each party receive independent legal advice prior to signing the agreement and that the lawyer signs a declaration that they have provided that advice;
• That the advice explains the effect of the agreement on each party’s rights and the advantages and disadvantages of making the agreement.

Child Support Agreements

A Binding Child Support Agreement allows parents to agree to the amount or method of paying child support, for example by paying as a lump sum, or by reducing the amount which would be payable according to a child support assessment.

A Binding Child Support Agreement is only valid if both parties have had independent legal advice, and a lawyer has signed a statement to that effect.

More information is available here:
https://www.humanservices.gov.au/individuals/services/child-support/binding-child-support-agreement