Do I have to go to Court?

No, you do not have to go to court to settle your differences with your former partner. You and your former partner can come to agreement on your own or with some help from a family dispute resolution service (see Family dispute resolution). You can then formalise your agreement to make it enforceable in the Family Court. There is no legal requirement that you formalise your agreement or even put it in writing. Formalising an agreement may, however, increase the likelihood that the agreement will be followed and may be relevant if you do need to go to Court at a later date.

Why is it best to try and reach an agreement?

Going to court is a costly exercise both financially and emotionally. Court cases can hurt relationships, hurt children and leave you in debt. If you go to court and ask the court to decide what to do in your life the court may make a decision without really knowing what your life is like. If you reach an agreement yourself you are more likely to make decisions that you will both be happy with and more likely to stick to. Making an agreement outside of court also saves you money, time and the emotional toll of a court case.

Do we have to try and reach agreement?

The court requires that you make a genuine attempt to reach an agreement before asking the court to make orders. If you are applying for parenting orders, you will have to give the court a certificate to show you attempted to reach agreement with a family dispute resolution (FDR) practitioner before you can start your court case. There are exceptions to this. For more information about this, see Family dispute resolution and Pre-filing procedures.

What services are there to help us come to an agreement?

If you are able to reach agreement on your own without needing to use any services that is great. You may be able to negotiate with the person or people on your own either face to face or by letter. If this does not work or you feel you need some help there are a range of options available to you to help your reach agreement. These are:

• Mediation - is where you meet with a neutral third person who helps you and the other people involved to sort out your differences and come to an agreement you are all happy with.
• Arbitration - is where you meet with a neutral third person who will listen to you and the other people involved and make a decision for you based on what they believe will best work for you all. In most forms of arbitration parties sign an agreement or contract to accept whatever the arbitrator's decision may be.
• Collaborative law - is where parties sign an agreement or contract with each other and their lawyers to negotiate and not go to court or threaten to go to court if they cannot agree. The lawyers are prevented from representing either party if the matter later goes to court so that negotiations take place in an open and cooperative way from the start.
• Family counselling - is where you and the other people involved and any children involved can get some counselling to sort out difficulties in your relationship. You may also be able to come to some agreement about what you will do with your children in family counselling.

For information on organisations that provide these services you can call the Family Relationships Hotline on 1800 050 321 or visit the Family relationships website and see Family dispute resolution for other information. You may also call the Legal Aid WA InfoLine on 1300 650 579 for more information.

Where can I get help to reach agreement?

Family Relationship Centres - are a source of information and confidential advice for families at all stages in their life. Centres are located throughout Australia and funded by the Australian government. They provide a range of services including information, advice and dispute resolution (such as mediation) to help people reach agreement on parenting arrangements without going to court. Call the Family Relationships Hotline on 1800 050 321 or visit the Family Relationships website for more info.

Legal Aid WA Alternative Dispute Resolution (ADR) - Legal Aid WA offers a FDR service where you and the other person or people get legal advice with a solicitor and then come into a meeting with your solicitors and a neutral third party (chairperson). In the meeting the chairperson will try and help you come to an agreement. If you reach an agreement it will be formalised in consent orders. Call the Legal Aid WA InfoLine on 1300 650 579 for more info.

Other service providers - there are a number of community organisations and privately run mediation and counselling services such as Relationships Australia, KinWay (Anglicare WA), and various Community Legal Centres that offer a range of options to assist you to revolve your family law matters. Call the Legal Aid WA InfoLine on 1300 650 579 for more information. You can also call the Family Relationships Hotline on 1800 050 321 or visit the Family Relationships website for more info.

Private family law practitioners - lawyers who are registered family dispute resolution (FDR) practitioners can provide legal advice and assist in negotiations. However, a lawyer can only represent one party in any dispute. If parties cannot agree with each other through negotiations, a FDR practitioner can issue a certificate which allows you to apply to the Family Court for orders. Call the Law Society of WA on (08) 9322 7877 for more information and/or a referral to a private lawyer.

What can we do if we reach agreement?

If you reach agreement you can either simply follow your agreement without formalising it or you can choose some way to formalise your agreement. The options you have are:

• Consent orders - Consent orders are made when you fill out a consent orders form (Form 11, available from the Family Court of WA) containing the agreement you have come to and you file it at the Family Court. Once you have filed the orders and they are stamped by the court with the court's seal they become just like orders that a court has made and are legally enforceable.
• Parenting plans - If your agreement is only to do with your children (excluding child support issues) you can write a parenting plan. Parenting plans are written agreements signed and dated by all people involved that set out things like where children will live, who they will spend time with and communicate with and who has parental responsibility for the children. Parenting plans are not enforceable in court. However, they may be relevant if parenting orders are made in the future. Parenting plans made after parenting orders will override parenting orders to the extent of any inconsistency. This is unless a parenting order specifically says that it will not be affected by a parenting plan. If you have parenting orders and are not able to make a parenting plan then you may have to file consent orders instead. You should get legal advice if you are in this position. If you are considering making a parenting plan, you should get legal advice before you sign anything.
• Binding financial agreements - If your agreement is to do with property you can make a binding financial agreement. Financial agreements are like a contract between you and the other person and can set out how your property is distributed etc. You must get legal advice before making a binding financial agreement.

One thing you should consider is that if you do not formalise your agreement it will not be enforceable in the Family Court. Particularly in financial cases, this may create more problems later on as the court may decide to redistribute assets even if you have previously come to an agreement on property.

What if we cannot come to an agreement about the kids?

If you have made a genuine effort to reach agreement about your kids and have not been able to you will have to see a registered FDR practitioner before you can file an application in court. That practitioner will be able to give you a Certificate to say that you have attempted to negotiate outside of court. You will need that Certificate to be able to start a court case. For more information on FDR, see Family dispute resolution.

Even after you start a court case you can come to an agreement either outside court or through some of the court processes. You should remember that it is usually better to come to an agreement yourselves, as this is more likely to better suit your needs than an arrangement imposed by the court.

Last reviewed: 01/09/2010