The Conciliation Conference – Opportunity to Settle Before Final Hearing

22/09/2016

In cases where proceedings are commenced in the Family Court or Federal Circuit Court of Australia for property settlement, the Court has a process to assist the parties to reach an agreement and settle the case before final hearing before a Judge (with solicitors and barristers).

The final resolution of a case by way of hearing and judgment after preparation of a case on a final basis is a time-consuming and very expensive process.  In most cases the conduct of the matter through to final hearing attracts significant costs that the pool of property available for distribution between the parties is significantly reduced by the legal costs involved in reaching the final hearing.

The experienced Solicitors at Watson & Watson are highly skilled in the preparation for the Conciliation Conference and the negotiations at the Conciliation Conference.  Watson & Watson do not use inexperienced Solicitors and representatives for this very important opportunity to resolve the matter, before the parties must proceed with the long and expensive (time and emotion) process for the hearing.  There is always an opportunity to settle, however the opportunity at the Conciliation Conference should be considered to be an important and timely opportunity to discuss the matter and attempt to resolve the disputes.

The Court has a process for early resolution after the Application has been filed in the Family Court or Federal Circuit Court. The Conciliation Conference is an early stage opportunity for resolution.  Conciliation Conferences are held at the Court and are conducted by a Registrar of the Court who attempts to assist the parties to reach agreement. 

The Conciliation Conference usually occurs after there has been one or two Court Directions and the Court is aware that the parties have completed the process of providing full and frank financial disclosure.  This is discussed elsewhere on the Watson & Watson website, for example in our articles 26 May 2016 and 11 August 2016. 

Following the financial disclosure each of the parties and the advisors are aware of the assets of the parties and an approximate evaluation of liabilities and the amount or value on a net basis that would be available for distribution and division between the parties.

As part of the process before the Conciliation Conference each party is required to complete a Financial Questionnaire for matters in the Family Court or Conciliation Conference Document for matters of the Federal Circuit Court. 

These documents set out in summary submissions relating to the assets, liabilities, contributions by the parties to the acquisition, maintenance, improvement of matrimonial property and non-financial contributions including contributions as home-maker and child carer.  The documents also set out the parties submissions, so far as needs based adjustment pursuant to section 75(2) of the Family Law Act.  In other words each party through his or her Lawyer prepares the necessary pre-conference documentation, attends the Conciliation Conference which is before the Registrar of the Family Court or Federal Magistrates Court.

The usual course for the Conciliation Conference is for each party to attend with their legal representatives.

The Registrar who effectively conducts the Conference initially has a session with each of the parties and their legal representatives.  The Lawyers for the parties, if the parties are represented, give a brief history and explanation and summation of their client’s position as to what is the appropriate resolution. 

The Court Registrar then conducts, encourages and facilitates settlement discussions.  The Registrar also makes known his or her view as to what he or she believes will be the outcome or arrangement that might be decided by the Family Court if the matter is not settled and proceeds to a Hearing.

The Registrar in the facilitating of discussions has numerous opportunities to discuss the matter for example:

1.        With parties without their Lawyers

2.        With Lawyers without the parties;

3.        With one of the parties and Lawyers without the other party.

This process is adopted with the Registrar acting as the facilitator in an attempt to obtain a resolution.

If there is a settlement then it is absolutely critical that the terms be comprehensively and clearly documented.  As we have indicated elsewhere for an appropriate enforceable agreement there needs to be either an appropriate Consent Orders or Binding Financial Agreement.  The parties could agree in the Conciliation Conference as to the form of resolution and documentation of the resolution.  If it requires a Binding Financial Agreement as to any aspect then there would be an agreement (not enforceable) for that to be prepared and documented. 

If the matter can be resolved by way of Consent Orders, drafted at that time, the Court can make the Orders.  Depending on the complexity of a matter the process needs to be carefully considered, if there is agreement and it is properly documented that will resolve the dispute.  If the matter is not resolved then the Court will make directions for the continuing of the case including provision of evidence and other matters. 

The Family Solicitors at Watson & Watson are skilled and experienced in negotiations over many years which includes proper preparation for Conciliation Conferences and negotiations at the Conference and documentation of the outcome if achieved.  Each of these aspects are critical to achieving the optimum outcome for you.

Further in our view having regard to our experience the properly prepared case has a significantly greater opportunity to resolve at a Conciliation Conference then one that is underprepared.  The settlement at any stage on reasonable grounds is a benefit to each of the parties so as to avoid extended and protracted litigation incurring significant costs (including the financial time and emotional).  The significant legal costs will result in a depletion of the asset pool that would be available to otherwise be divided between the parties.

If you have any questions please contact Richard Watson or his Personal Assistant Shereen DaGloria to assist.

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