Australia: Mediate, collaborate or litigate - resolving your family law matter

Last Updated: 12 July 2019
Article by Annette Wilson

There are a number of ways in which you can resolve your financial and parenting issues after a relationship breakdown.

The first and least expensive way to resolve these issues is to discuss them with your partner and attempt to come to an agreement.

You should obtain legal advice before attempting to resolve the issues yourself. This can be helpful because it will give you an understanding of how the court deals with the division of property and the care of children after a relationship breakdown. You will then have some parameters to allow you to discuss your own unique situation with your partner. A relationship breakdown is a very difficult situation for both parties. It is likely that it will take more than one meeting to resolve your issues, however, if you feel that you are making progress you should continue the process until you have exhausted that avenue.


If you are unable to discuss with your partner the division of your assets or the care of your children you can obtain the assistance of a mediator.

A mediator is a third person who is impartial and who will assist both you and your partner to come to an agreement. It is their role to facilitate an agreement and to guide the parties through any difficult conversations relevant to their circumstances. A mediator does not provide legal advice and it is important that, prior to attending any mediation, you obtain legal advice so that you are aware as to how a court would deal with your particular matter.

Mediations can be conducted between yourself and your partner only or they can be conducted where both parties or one party has a solicitor representing them. Further, some mediation services provide two mediators, one for each party, to support them through the process and to minimise as much as possible the trauma and conflict which sometimes exists when parties are discussing these very sensitive issues.


Collaboration in the context of a relationship breakdown is a process where parties and their lawyers enter into a contract to negotiate an outcome without resorting to litigation. If you and your partner are both committed to resolving your financial and/or children's issues without resorting to the courts, there are many well qualified solicitors who work in a collaborative law setting.

The way collaborative law works is there are a series of meetings between the parties and their solicitors with the set aim of trying to resolve both the parenting and property issues of the parties. Often these meetings are between four and seven in number, however, they can be less or much more depending on the complexity of the issues and the persons involved. Very often it is not only solicitors involved but also there are other professionals who provide assistance including psychologists, financial planners, accountants or any other expert who can assist.

The experts are neutral and provide open and honest advice to both parties with an aim of reaching a resolution which meets as much as possible the needs of both parties. The aim of the negotiation in a collaborative setting is to allow yourself and your partner control over the process and for you to set the pace and the content of the matters to be discussed. There is enough time within this process for both parties to be heard and for everyone to understand the implications of what an agreement will mean and the options which are available to resolve any particular issue. All parties in this setting do their best to make it as pleasant as possible and to work together to obtain an outcome.


Negotiation through solicitors is another way in which people can obtain a resolution of their issues. This is the most common way that people resolve their differences and it involves both parties engaging solicitors.

The solicitors communicate with each other and obtain appropriate disclosure and also ventilate the issues from the perspective of their own client. Once full disclosure has been made and the issues identified, then it is very likely that the solicitors will arrange a settlement conference so the parties can meet and try and resolve the matter.

A settlement conference can occur with both the solicitors and parties in one room or where the parties are in separate rooms and the solicitors meet and attempt to resolve the matter and then return to their clients to obtain updated instructions during the conference. Very often a settlement conference can last many hours and, on some occasions, there is more than one settlement conference. If the parties are unable to resolve their issues at the settlement conference they will continue to be represented by their solicitors.


Unfortunately, if you are unable to resolve your relationship issues by any of the above methods, the way in which you can obtain a resolution is to file an application with either the Family Court of Australia or the Federal Circuit Court of Australia. This is known as litigation and occurs when two parties are unable to resolve their differences and resort to the court to settle the differences for them.

The manner in which this process is commenced is by filing an Initiating Application with the Court. Once the Initiating Application has been filed, it is served on the other party and that party will then file and serve a Response to the Initiating Application. At the same time as filing and serving the Initiating Application and Response, the parties are required to file and serve a Financial Statement if it is a property matter.

The Financial Statement sets out the assets and liabilities of each of the parties and provides both the other party and the court with an understanding of the asset pool that the court is being required to divide.

Prior to commencing proceedings with respect to children the parties are required to obtain a Section 60I Certificate from a Family Dispute Resolution Practitioner. If you do not obtain a Section 60I Certificate then you are unable to commence proceedings in the court with respect to your children. There are some exceptions to this Rule which includes family violence, abuse or urgency.

Even if you file an Application with a court you are encouraged throughout the litigation process to attempt to resolve the matter with your former partner yourself. However, if you are unable to do so then the matter will come before a judge who will make a final decision about the issues of your relationship, both financial and children, on behalf of both parties.

An agreement reached through any of the methods described in this paper will need to be recorded in a manner acceptable to the court. You will be required to record your agreement in Consent Orders sealed by the court or a Binding Financial Agreement. If you are in the court process and your matter is determined by a judge, then the judge will provide a judgement and orders which will resolve the matter. The judgement will provide the reasons why the judge makes the orders that have been made.


One of the factors which you should consider when determining your financial and children's issues is the cost. Litigation is likely to be the most expensive way of resolving your matter and can also be emotionally exhausting. It usually takes between two and three years to reach a final hearing date, having regard to the current court delays. However, unfortunately, there are times where parties have tried all other options and litigation is required.

At Swaab our lawyers are accredited specialists and a number have been trained in collaborative law. We are experts in the field of Family Law and if you require our assistance please contact us to obtain detailed advice with regards to all processes available to assist you to resolve your matter.

For further information please contact:

Annette Wilson, Partner & Family Law Accredited Specialist
Phone: tel:+61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions