Orders by Consent or by the Court must be clear often they are not - this causes problems

05/10/2015

Over the years Watson & Watson have seen many Orders and Terms of Settlement, particularly where the Terms of Settlement and/or Orders are made at or during the hearing, which are unclear.  One should never assume that the difficulties that the parties are faced with up to that time have suddenly been overcome by an agreement to settle.  Experience shows that the failure to clearly document a settlement causes stress and strain and additional costs to sort out.  It is not unheard of that one party will take advantage of badly worded Terms of Settlement or Consent Orders. 

On many occasions the unclear terms of Orders are drafted by lawyers.  If you and your former partner have been able to agree (which occurs in most cases before the hearing) care should be taken to ensure that the documentation of the settlement is appropriate and clear.

The Family Law Act allows some specific alternatives to document an agreement between the parties.  One needs to carefully consider which is the appropriate format and what are the benefits and detriments of each form of formalising the arrangement agreed to.  Agreements may be reached relating to some or all of the following:

(a)       Financial including Property and Maintenance matters;

(b)       Interim financial matters;

(c)        Children matters including:

            (i)         the time that the children spend with each of the parents and other significant persons; and

            (ii)        financial matters.

The documentation of an Agreement is as critical as the negotiation and resolution.  It is critical that you have senior experienced practitioners to obtain the best outcome at this critical documentation stage.  This is one of the reasons why at Watson & Watson only experienced practitioners are engaged for what is usually one of the most stressful stages of one’s life.

Often we receive enquiries following agreement and documentation by people who are concerned as to the documentation and the implementation of what the person making the enquiry thought was to be simple a matter.

There are common wording in agreements such as “the parties will agree” which of itself is meaningless.  There are ways that the documentation can be drafted which gives protection to each of the parties and leave some flexibility if that is what is sought.

If you cannot understand the documentation or it does not deal with the circumstances that are or likely to or could arise in the implementation (including co-ordination of settlements), then the documentation is not an adequate protection against future litigation.

The documentation is one of the many aspects that are critical to obtaining a suitable outcome with as little stress as possible.  It is difficult to obtain a second opinion too late in the stage and in those circumstances it is critical that you consider this aspect early on in deciding who you wish to seek advice from and instruct in this very important time of your life. 

Please telephone Richard Watson to discuss any aspects that may concern you.  Even though it may be late in the process and if you realise that you are concerned as to the effectiveness of the documentation it is very important to sometimes stop, consider and if necessary obtain a second advice.

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