Do I have to go to Family Court to resolve my family law issues?
No, you do not have to go to court to make arrangements for your children or property 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 in writing if you choose (see further below under What can we do if we reach an agreement?)
Why is it best to try to reach an agreement?
Going to court is a costly exercise both financially and emotionally. Court cases can be damaging to relationships and if not managed very carefully, can be harmful to children. If you ask the court to make a decision for you, a judicial officer will base their decisions only upon the law and the evidence presented before them in court, so they do not really know you, your former partner or your children when making a decision. It can take more than one year to receive a final decision from the court and you cannot be sure what the court will decide. If you make an agreement yourselves, you have more certainty as to what is going to happen and can avoid the time and expense of a long court case.
Even after you start a court case you can come to an agreement either outside court or through some of the court processes. The vast majority of people who start a case in the Family Court end up resolving the matter by agreement before going to a trial.
Please note: there are some circumstances where it may not be possible or appropriate to reach an agreement directly with the other person, for example, where there has been family violence or child abuse. Seek legal advice.
Do we have to try to reach agreement?
The Family 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 practitioner before you can start your court case. There are exceptions to this. For more information, see Family dispute resolution and Before you go to court – children. There are also specific requirements about dispute resolution before starting a property case. See Before you go to court – property.
How can we try to reach an agreement?
There are various methods you can try to reach an agreement with your former partner and any other people involved. If one method does not work, you can try another, or you could try a combination of different processes.
This is where you discuss the issues with the other person. You can negotiate with or without the help of a lawyer. This can be done face to face, over the phone or by letter or email. Sometimes seeking legal advice is part of this process.
Mediation is a process where you meet with the other person and a qualified and independent third party (a “mediator”) to discuss the issues and try to reach an agreement. Participants are encouraged to seek independent legal advice before attending mediation.
Collaborative law is a method of dispute resolution where each person signs an agreement or contract with each other and their lawyers to negotiate and not go to court or threaten to go to court. The lawyers are prevented from representing either person if the matter later goes to court, ensuring that negotiations take place in an open and cooperative way from the start. Sometimes experts such as financial advisors or child psychologists will be involved to assist the process. For more information or to find a collaborative lawyer in Western Australia, go to Collaborative Professionals WA.
This is a process where you meet with a neutral third person (who is usually trained in the law) who will listen to you and the other people involved and make a decision about what should happen. In most forms of arbitration parties sign an agreement or contract to accept whatever the arbitrator’s decision may be. Arbitration is not a commonly used form of dispute resolution for family matters in Western Australia.
This is where you, your former partner and children receive counselling to sort out difficulties in your relationships. You may also be able to come to some agreement about arrangements for your children in family counselling,
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 information.
Legal Aid WA Dispute Resolution Program - Legal Aid WA offers a dispute resolution program similar to a mediation at a Family Relationship Centre. The main difference is that each person will have the assistance of a lawyer before and during the process. The independent mediator (the Chairperson) will try to help you come to an agreement. If you reach an agreement it will usually be formalised in consent orders. Call the Legal Aid WA InfoLine on 1300 650 579 for more information and to see if you are eligible for this program.
Other service providers - there are a number of community organisations and privately run mediation and counselling services such as Anglicare, Centrecare, Relationships Australia, 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.
Private family law practitioners – a family lawyer can provide legal advice and assist you to negotiate with the other person. Some lawyers are also registered family dispute resolution practitioners and so can carry out family dispute resolution (for more information, see Family dispute resolution). Call the Law Society of WA on (08) 9322 7877 for more information or a referral to a private lawyer.
What can we do if we reach an agreement?
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. In the case of agreements about property, it is usually best to formalise your agreement as this can assist you in dealings with organisations such as banks and lenders, and prevent either person from making a claim against the other’s property in future.
If you wish to formalise your agreement, you have the following options:
- Consent orders - Consent orders are Family Court orders that are made with the agreement of all the people involved (usually you and your former partner). You can apply for consent orders by filling out a Form 11 Application for consent orders (available from the Family Court of WA) and filing the form along with the details of your agreement at the court. Once you have filed the orders and they are stamped by the court with the court's seal they become just like any other orders made by the Family Court and are enforceable in the court.
- Parenting plans - If your agreement is only to do with your children (excluding child support issues) you can make a parenting plan. Parenting plans are written agreements signed and dated by all people involved that set out your agreement on issues 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 the Family Court. However, they may be relevant if you go to court in future as the court can take into account the terms of a parenting plan if it would be in the Best interests of the child to do so. Parenting plans made after parenting orders will also override parenting orders to the extent of any inconsistency. This is unless a parenting order specifically states that it will not be affected by a parenting plan.
- 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 and deal with things such as spousal maintenance. There are very specific requirements for making a proper binding financial agreement. You must get legal advice before making a binding financial agreement.
Important: you should always seek independent legal advice before signing any kind of written agreement.
What if we cannot come to an agreement about the children?
If you have made a genuine effort to reach agreement about arrangements for your children and have not been able to, you will have to attempt family dispute resolution with a registered family dispute resolution practitioner before you can file an application in the Family Court. There are some exceptions to this. For more information, see Family dispute resolution.
Where can I get more information?
- Go to the When Separating website. Here you will find short films about family law and other helpful information and links for families experiencing separation
Last reviewed: 22/10/2012