Do I Have to Go to Court?
The short answer is no.
Going to Court is a last resort used when negotiations have been unsuccessful. Before commencing proceedings, we use a range of negotiation tools such as letters or emails, informal conferences and mediations.
If you and your former partner can reach an agreement about your children and / or financial matters, you are not obliged to go to Court or to formally document your agreement in any way. However, electing not to do so may cause problems in the future.
There are ways to formalise your agreement and protect your interests which do not require Court appearances.
A “Parenting Plan” is a written agreement which is signed and dated by both parents. It can deal with major, long-term decisions for the children, their living arrangements, financial maintenance and any other issues the parents consider are important or necessary to the ongoing care, welfare and development of the children. Parents can enter into a new Parenting Plan as the arrangements and needs of the children change. There is no cost, and neither party is required to attend Court nor register the document.
The disadvantage is that Parenting Plans cannot be enforced by the Court. If one parent fails to do something which he or she agreed to do in the Parenting Plan, the other parent has no recourse. The Court may consider the terms of any Parenting Plan in any future proceedings, however there is no consequence for breaching a Parenting Plan.
Parties may jointly file an Application for Consent Orders, and ask the Family Court to make an Order in terms of what they have agreed. It is not mandatory (although recommended) to obtain legal advice and neither party is required to attend the Court. Once pronounced, the Orders are legally binding and can be enforced by the Court. Further, parties can apply for relief from the Court if the Order is contravened.
Parties can jointly apply to vary the Order at a later date if the arrangements change, or they can enter into a Parenting Plan which will override the Orders. If only one parent wishes to vary the Orders, they must first show a significant change in circumstances.
Parties can also file an Application for Consent Orders with respect to financial matters. Alternatively, they can enter into a Financial Agreement, which is a private contract between the parties. To enter into a Financial Agreement each party must first obtain comprehensive, independent legal advice. The Financial Agreement will never be filed in the Court unless either party seeks to enforce it or set it aside.
Failure to formally document your agreement may expose you to an application being made in the future, even if you have already sold or divided your assets. A statutory declaration or piece of paper signed by each party will not protect your interests. Further, any assets you accumulate post-separation may be considered when the Court makes its determination.
Having a Court Order or binding Financial Agreement will give the parties certainty and finality. Another benefit is that parties can obtain stamp duty exemptions and CGT rollover relief for transfers of property between them, which can potentially save thousands of dollars.
For assistance with formalising your parenting or financial arrangements, please contact Leach Legal on 08 9486 9733 for a free 15 minute consultation with one of our experienced family lawyers.