Post-Separation Mediation Agreements

When people first separate, they often don’t know where to turn. Legal advice is a common (and wise) first step to get some information about your situation and which legal processes might be the best for you.

However, most cases do NOT need expensive court or litigation processes to reach agreement about the issues at hand. Mediation is increasingly being used as an effective and affordable way to resolve both parenting and property matters. As a recent client put it – I’d prefer our small amount of savings to go to our daughter’s braces, not to our lawyer’s children’s private school fees!

Compared to litigation or court, mediation is FAR cheaper, faster, and more straightforward. It also keeps the parenting arrangements focused on the best interest of the children and gives people more of a say in the outcomes.

Mediators can help clarify what is really important for you in terms of outcomes. For example, perhaps keeping the family home, or being able to retrain for the next step in your career is most important. Or a particular arrangement with the children that fits your work, family and other commitments. Mediation helps you to clarify these goals and then reach an agreement that both parties are ok with.

So it’s reasonably clear how mediation can help, but one of the common questions we’re asked is: What outcomes are possible from post-separation mediation? This article covers the different kinds of outcomes possible from mediation after separation. We have divided the info into parenting and property matters as the process and outcomes will be slightly different for each.

Parenting Matters

Where clients are able to reach an agreement, there are three basic options that they can consider for finalising things and putting the agreement in place.

1. Goodwill Agreement: This is a verbal, or possibly written, informal agreement where parties agree on an arrangement moving forward. It is often quite flexible and more common with parties where the level of conflict is quite low. Goodwill agreements can also be used as interim agreements, e.g. “The children will live with A and spend time with B until we sell the house, then we will come back to mediation for a more long-term agreement.”

2. Parenting Plan: This is created when parties reach agreement and it is put in writing (most mediators will provide you with a professional, written document of your Agreement). It can be as specific or general as needed, although outlining some of the complexities in detail helps to prevent misunderstandings down the track. Once the document is signed and dated by both parties it becomes a Parenting Plan according to the Family Law Act. You do not need to go to court to make a Parenting Plan. This type of agreement is not legally binding, however if conflict comes up again, it can be considered by the court as evidence (by contrast, most discussions and negotiations from family mediation are not admissable as evidence to court as long as your mediator is an accredited Family Dispute Resolution Practitioner, or FDRP). Parenting plans can be updated as needed, e.g. once children start school or if one or both parents’ work arrangements change. If the arrangement has been working, parties can negotiate the revised arrangements directly or come back to mediation for help.

3. Parenting Orders: This is where the court makes an order based on your agreement. A Court Order becomes law – legally binding and enforceable, and each person affected by the order must follow it. You can file an application for consent orders yourself (information is available on the Family Court website or a lawyer can help you. Agreements being made into orders need to be specific and enforceable, thus the level of detail needs to be high. If you intend to go for this option, you should let the mediator know and they will make sure your agreement contains the level of detail and language required to save time and legal fees. Court orders can also be updated by either making a Parenting Plan that sits beside the orders or by a new application to the court.

If you don’t reach agreement

If you are unable to reach an agreement about parenting matters for some or all of the agenda items, the mediator can give you a what is called a Section 60I Certificate (note – the ‘I’ is an uppercase ‘i’ not a 1). The 60I refers to the section from the Family Law Act that refers to these certificates. Only accredited Family Dispute Resolution Practitioners can issue these, so make sure the mediator you select has a current accreditation with the Attorney General’s department.

Section 60I Certificates are to show that you have tried mediation but were unable to reach an agreement. You are then able to pursue legal processes to resolve the matter. There are different kids of certificates, including that the other party did not attend, or that the mediator assessed the matter as not appropriate for mediation. Make sure the mediator you choose is an accredited Family Dispute Resolution Practitioner (this is a specific type of accreditation with the Attorney General’s Department).

Financial and Property Matters

Although these often referred to as ‘property matters’ these mediations can involve all kinds of assets and debts (not just property such as houses and apartments). Agreements might include arrangements for splitting credit card debts, savings, superannuation, houses, cars, household furnishings, jewellery, tools and so on.

For property matters, most people choose to make an agreement legally binding. There are two main types of ways to do this:

1. Court Orders: Again, these orders can be made by consent and a lawyer can help you finalise these. It is important to seek legal advice before and during the mediation process, however if you have reached agreement in mediation you will save substantially on legal fees. This is particularly important if you want to maximise the asset pool that can be used for yourselves and your children, and minimise legal costs.

2. Binding Financial Agreement: These agreements cover the division of property, superannuation and/or spousal maintenance. These can be entered into at different stages of the relationship (they are the Australian equivalent of what some people refer to as a ‘pre-nup’, but are also used after separation). Once you reach agreement in mediation, lawyers will help to finalise the Agreement. There are some conditions under which these agreements can be set aside by a court at a later date, so it is important to talk about these with your lawyer before entering into this kind of agreement.

The other kind of financial document that is sometimes a result of mediation is an agreement about child support. The Child Support Agency can talk you through what the default arrangements would be according to their assessment, but in some cases parties choose to develop a private agreement. This can also be made into a binding agreement, using the Child Support Agreement form available online, and completing it with the held of a legal professional, then submitting to the Child Support Agency.

For More Information

We hope this information has been helpful for you. If you would like to discuss whether mediation can be helpful in your situation, just send us an email at enquiries@rebootresolve.com.au, or give us a call on 1300 163 020. Our consultation process is free, and there is no obligation to proceed. More information is also available on our website at rebootresolve.com.au.

The Family Court Website is a good place to start if you are looking for more information about Family Law arrangements.