Collaborative Family Law

By Lisa Wagner & Ashleigh Middlin

Is Collaborative practice right for my family law matter?

What is Collaborative Family Law?  How does it work?

Wanting to know more about Collaborative Family Law, if so, read on as we discuss what it is and how Collaborative Practice can positively impact your family law experience.

Collaborative practice is a process that has slowly developed in various areas of law throughout the past 10 years. This practice, however, has finally found solid footing in Family Law in Australia.

What is collaborative practice?

The process can best be described as a series of conversations which aim to put both your and your partner’s interests on the table for open discussion. This is where you each consider what is important to you moving forward (such as who retains the former matrimonial home, or how the children will spend religious holidays with you), and where your legal representatives will also individually advise you as to the family law issues at hand.

How it can benefit you in your separation?

Collaborative practice in Family Law is a process that encourages both parties to actually work together to resolve their own disputes, whether property or parenting-related, or both. It’s a relaxed and supportive process and one which embodies a conversation-style of resolution where there is no ‘threat’ of Court looming over your heads as you negotiate and where you are both committed to negotiate in good faith. It also enables parties to feel empowered and as though they have a voice which is listened to by their partner.

A more long-term benefit of the collaborative process is that there is a greater chance that you and your partner will be able to maintain a relationship with one another after your separation, particularly in circumstances where you share the care of young children and are expected to co-parent after separation. It also assists you both to communicate more effectively with one another and further minimise any potential conflict or hostility.

So, what is the process?

While you and your partner have the assistance of a collaboratively-trained ‘team’ of professionals including a neutral coach and your respective family lawyers (as well as other experts such as financial advisers or child psychologists, should you wish), this process is especially designed to allow the both of you an opportunity to explore a variety of solutions with the aim of reaching an agreement in relation to your Family Law matter. These solutions allow you and your partner an advantage of settling your matter how you actually want, and not how the Court determines.

In the collaborative family law process, both you and your partner, as well as your respective family lawyers each sign a contract called a “Participation Agreement” which outlines a number of principles and guidelines including that you will not go to Court, you will negotiate in good faith, and you will be honest, transparent and speak openly throughout the process. The Participation Agreement also includes a provision that states that in the event the negotiations fail, both parties’ legal representatives will cease to act. The benefit of this is that it encourages both parties to properly commit to the process and make a genuine attempt to reach a solution.

Once the Participation Agreement is signed, you can expect that the process may take several sessions before you reach an agreement in relation to your property and/or parenting matter. The number of sessions needed, however, varies and depends on a number of factors including, for example, the nature of the discussions (such as whether you wish to discuss your property or parenting matter, or both), issues in dispute, whether you and your partner have exchanged all financial documents and other information that may be needed, as well as whether you choose to bring in other independent professionals to assist.

Once you and your partner have reached an agreement, your legal representatives will then prepare the necessary family law settlement documents to ensure that your agreement is legally enforceable.

Is it quicker than the Family Court?

 Generally, yes. This depends, however, on you and your partner’s willingness to settle the matter. The more effort and determination you both put in to the collaborative process, the more likely it is that the process will be much faster than filing an Application with the Family Court.

In circumstances where one party is not willing to commit to the process or fails to comply with the provisions contained in the Participation Agreement (for example, they refuse to provide necessary financial disclosure documents), you may find that the process is being ‘dragged’ out at significant costs to you. At this stage, it may be appropriate to re-evaluate whether it is beneficial for you to continue with this process.

 Is it costly?

 Before you, your partner and the collaborative team sit down to start discussions, your family lawyer will inform you of their costs to prepare for and attend each session. You and your partner will each meet your own legal fees and enter into separate costs agreements with your respective legal representatives.

Sometimes the process can become more costly where other professionals, such as financial advisors or child consultants, are brought into the team. These type of costs, however, are generally shared between you and your partner.

Whilst the collaborative process may not be a ‘cheap’ option compared to other forms of dispute resolution (such as mediation or lawyer assisted mediation ‘LAM’), the majority of clients view the collaborative process as a worthwhile investment.

 How do I know if collaborative practice is right for me in my family law matter?

There are circumstances where collaborative practice may not be appropriate such as where there is high conflict, family violence or children are at risk. The process may also not be suitable for those who are Court-focused, unwilling to negotiate openly and honestly with their former partner, or who are hostile and simply want ‘justice’.  

 If you and your partner have separated and are looking at how best to sort out your finances or the care arrangements for the children, and you wish to do so privately, amicably and resolve matters how you want, the collaborative process may be for you.

If you would like more information about the collaborative process and whether this is a suitable option for you, please contact our office on (02) 9437 0010 or to make an initial appointment with one of our collaboratively-trained family lawyers.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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