How does mediation work?

For many couples, mediation is a crucial step in reaching an agreement. It’s when an independent person helps you negotiate your financial and property settlement and parenting arrangements.

Fighting out your agreement in Court can be drawn-out, costly and stressful. Mediation is a dispute resolution process designed to keep your matter as amicable as possible and out of Court.

Family mediators in Australia have to be accredited Family Dispute Resolution Practitioners (FDRPs.) They work to facilitate discussions, problem solve and promote understanding to help you reach an outcome that works for both of you.

The agreement you reach through mediation isn’t legally binding. You need separate lawyers to draft what you’ve agreed into consent orders and submit them to the Court, where the agreement is checked to ensure it’s fair for everyone involved.

Mediation can take several forms.

Guided Separation

Guided Separation is a form of evaluative mediation, which means you work with a mediator who is both a qualified FDRP and a practising Barrister or solicitor. We call them Guides.

While the Guided Separation mediator is a qualified lawyer, they are not representing either of you. They are not on your side and not on your partner’s side. They are on the side of fairness. Their legal qualification means they can answer any question about the law, provided it is requested by both of you and done in an impartial way.

The Guided Separation program follows a process of straightforward steps. Your starting point is a questionnaire that you both complete. Your answers are then used by the Guide to create a discussion draft of the agreement for you both to consider. This is used as the basis of your mediation. You also decide on the target date to complete your agreement. You have a path for progress and a clear timeline that suits your needs and goals. Typically, this is the fastest and most amicable way to reach an agreement.

After Guided Separation, independent lawyers are required to convert your agreement into the relevant legally binding instruments like binding financial agreements or applications for parenting or property orders.

Traditional FDRP mediation

In a traditional setting, you work with a non-legally qualified FDRP who facilitates conversations between you and your ex-partner. They can help you work together but can’t answer your questions about how the law operates or what a fair range of outcomes might be in your circumstances. You work with your own lawyers so you understand your rights and entitlements and the long-term effects of your decisions.

This approach can work if you, your partner, your mediator and your lawyers all work towards the same goal and have the same de-escalation mindset and if the advice is sensible and realistic. But there are a lot of moving parts. A pain point of traditional family law is that it can be costly and stressful. The back and forth between lawyers and mediators can create disagreements that didn’t exist before if not all parties have the same approach.

Court-ordered mediation

If you’ve failed to reach an agreement through traditional FDRP mediation or legal representation, your case may escalate to Court. The judge can decide that your failure to agree is due to a relationship issue rather than a legal one. In this case, they can order you to undertake court-ordered mediation. Even if you’ve attempted FDRP mediation in the past, the judge can still mandate mediation again.

You’ll both sit in a room and work with your lawyers and a court-appointed or private mediator until you both compromise and reach an agreement. In this setting, the lawyers usually draft the agreement during the mediation.

This process often occurs at the end of an incredibly stressful and costly period where you’ve both paid thousands for lawyers. Matters have escalated and headed to Court, only to end up with you both back in mediation to reach agreement.

Mediation exemptions

Mediation is not appropriate in some cases where there is a legal reason for a Court appearance. According to the Family Circuit and Family Court of Australia, the following conditions may mean you’re not required to undertake mediation:

in an application for parenting orders, if there are allegations of child abuse or family violence or a risk of child abuse or family violence
in an application for financial orders, if there are allegations of family violence or a risk of family violence
for urgent applications
if you would be unduly prejudiced if you were to complete mediation
if one of you has filed a previous family law application in the last 12 months
if you’re applying for divorce only
if the proceeding is a child support application or appeal, or
if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.

If none of these situations applies to your separation, then mediation is something you’re likely to encounter to help you work towards an agreement.

At The Separation Guide, we advocate for early intervention. We encourage separating couples to seek assistance from a mediator sooner rather than later. This can save both of you money, time and stress, leaving more in your asset pool and allowing you to move on as quickly, calmly and fairly as possible.

Our 3-minute Q&A can give you a pathway for separation, and let you know if Guided Separation will suit your situation.

The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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What is conscious uncoupling?

When a relationship ends, it can be a deeply emotional and difficult experience for both parties involved. It is natural to feel a range of emotions, including sadness, anger, and grief. However, conscious uncoupling offers an alternative approach to dealing with the end of a relationship that focuses on self-care, personal growth, and healing.

Gwyneth Paltrow popularised the term when she and her then-husband, Chris Martin, announced their separation in 2014. Conscious uncoupling, coined by relationship coach and author Katherine Woodward Thomas, refers to the process of ending a romantic relationship in a way that is respectful, compassionate, and mindful of both parties.

“Your breakup doesn’t need to ruin your life, damage your kids or define your future,” says Woodward Thomas. The aim of conscious uncoupling is to “bring you through one of the most difficult things you ever have to go through intact and with everyone set up to win”.

What is conscious uncoupling?

While every breakup is unique, and there is no one-size-fits-all solution, conscious uncoupling offers a framework for navigating the end of a relationship with grace and kindness.

One of the key elements is the idea is that both of you played a role in the demise of your relationship demise, and taking responsibility for your actions is important. This means acknowledging any hurt you may have caused and apologising for it. It also involves forgiveness, both for yourself and your ex-partner.

Another important aspect of conscious uncoupling is personal growth. Instead of getting stuck in negative emotions, it’s about moving forward and becoming the best version of yourself. This might mean going to therapy, joining a support group, or finding other ways to process the end of the relationship.

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Is conscious uncoupling an easier way to end a relationship?

Often the easiest emotions to feel when you are hurting are anger and resentment. It can be easier to blame someone else for your situation than take responsibility for your role in the situation. The conscious uncoupling process can be challenging and requires a willingness to be vulnerable and honest about your own emotions and actions.

However, the benefits of the approach can be significant. It allows you to end your relationship with love and understanding rather than bitterness and resentment and move forward with a sense of peace.

Who can help us consciously uncouple?

If you’re considering this approach, it can help you both to seek the support of a divorce coach or couples counsellor who can help you communicate in a way that will avoid escalation and lay the groundwork for a positive separation. They can also support you with some of the more confronting aspects of acknowledging your own role in the breakdown of the relationship. It is also important to choose legal professionals aligned with your wishes and actively seek to avoid escalation.

Journalist Tamara Oudyn from ABC Radio Life Matters podcast series ‘The Good Divorce’ spoke with Katherine Woodward Thomas about conscious uncoupling. Listen to the episode here.

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The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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Shared parenting & ‘nesting’ in separation

When parents decide to separate, one of the biggest challenges they face is figuring out living arrangements for themselves and their children. This can be especially tough in the early days if the couple is in a trial separation and not ready to set up two permanent homes. For families going through a separation, many choose a style of living and parenting called ‘bird-nesting’.

What is bird-nesting in separation?

Bird-nesting, also known as “nesting” or “bird’s nest custody,” is an arrangement where children stay in the family home, and the separated parents move in and out on a rotating basis. It’s often used in early separation and can be an interim arrangement while you make formal living and shared parenting arrangements.

When not at home, parents may choose to stay with friends or family, in a hotel, house-sit, rent a room in a share house, or split the cost of a small apartment big enough for one person at a time.

How does nesting help children adjust to separation?

Bird-nesting aims to keep children’s lives as undisrupted as possible by having them stay in their family home. This can be really helpful because it allows children to maintain a sense of stability and continuity. They get to stay in their own rooms, go to the same schools, and have their own routines. Staying in the comfort of their own home with their familiar surroundings can help support children as they adjust to the “new normal” of separated parents.

Clinical psychologist Tarnya Davis explains, “it’s important that children continue to have a relationship with both parents.” Nesting may be one way to ensure this.

However, nesting may be confusing for children if it continues indefinitely. They may feel they are in a situation of limbo. They may ask whose house is it, or how final is the separation if you don’t have separate homes? It’s important that you communicate clearly with your children on your expectations and intentions for the nesting arrangement.

Is bird-nesting right for my family?

So, is bird-nesting right for you? Here are a few things to consider:

Can you and your ex communicate effectively and co-parent well? Bird-nesting requires a lot of cooperation and communication between the parents. If you and your ex have a lot of conflict or struggle to see eye to eye, this arrangement may not be the best choice.
Are you comfortable with the idea of sharing a space with your ex? Bird-nesting can be emotionally challenging, especially if you are not on good terms. Make sure you are comfortable with the idea of seeing each other regularly and sharing the same space.
Can you afford it? Bird-nesting can become expensive, especially if you each book hotels or other short-stay accommodation each week. Make sure you have a clear budget before deciding on this option, and if it looks like a longer-term arrangement, consider renting a shared apartment.
Are you willing to be flexible? Bird-nesting requires a lot of flexibility, as you will need to be able to adjust your schedule and routines to accommodate the other parent’s time in the house. Make sure you are willing to make sacrifices and be flexible.

Bird-nesting tips

There are a few ways you can set yourselves up for nesting success.

Communicate your expectations, preferences and boundaries: Make sure you share what you expect from your ex for nesting to be a viable option for your family, and be respectful of their needs too.
Decide on some ground rules for your family interactions: Some separated parents will continue to have dinner together once per week in the family home, and others will pass by each other in the hallway when the other comes home. Be sure you both feel comfortable with your level of contact.
Create a schedule: Having a schedule can help ensure that everything runs smoothly and that everyone knows what to expect. This could include a schedule for each parent’s time in the house and a schedule for activities and chores.
Involve your children: If it’s age-appropriate, make sure to involve your children in the decision-making process and consider their needs and preferences. It’s important to make sure they are comfortable with the arrangement and that it is not causing them undue stress.
Have a backup plan: It’s always a good idea to have a backup plan in case something unexpected arises. For example, if one parent gets sick and can’t stay in the house, you’ll need to have a plan in place for how to handle the situation.
Seek support: Bird-nesting can be emotionally challenging, so it’s important to seek support from friends, family, or a therapist if you need it.

When is bird-nesting not appropriate?

Generally, nesting is more appropriate where the separation is amicable and should always be considered on a case-by-case basis. Nesting is not appropriate in some circumstances, particularly where there is any family violence.

Ultimately, bird-nesting is not for everyone. It requires a lot of cooperation and communication and can be emotionally and financially challenging. But for some separated couples, it can be a great way to co-parent their children and maintain a sense of stability for the family. Weigh the pros and cons and make sure nesting is the right choice for your family.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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How do I communicate with my partner during a separation or divorce?

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What is mediation?

Mediation allows both parties to make decisions about their own futures and come to an agreement.

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Shared parenting & 'nesting' in separation

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How might a divorce impact grandparents?

Adjusting to life after separation is a challenge for every family that goes through it. Less commonly considered is that the challenge can extend to grandparents who may have their own uncertainties as to how they should navigate this ‘new normal’.
“Separation impacts much more than just the two people involved” says Rebecca Dahl, partner at Nicholes Family Law. And as Geoff, a father and grandfather who has recently supported his daughter through her divorce told us, “you never stop being a parent”. Overarchingly, a grandparent needs to show support for the family at large, and where possible remain impartial.

On learning of his daughter and son in law’s separation, Geoff says he felt the weight of wanting to make sure he was able to give the right advice and support “but I didn’t really know what that was”. “I hadn’t been through a separation, so I didn’t have a lot of experience in what to do next. But trying to alleviate my daughter’s concerns and talk through her late night worries was just something I had to take on”.

I told her “I think you need to work out what you want from this, and then find a lawyer that is aligned with your beliefs. I’ve seen too many people fight unnecessarily, and all that ends up happening, is they lose out in the end”.

Staying connected with grandchildren while maintaining communication with the other party was a key concern. “For us, it was about ensuring we could support them both as they worked through their issues, but also we were keen to be there to support our grandkids,” says Geoff.

As Rebecca explained “The Family Law Act states that as well as their parents, children have a right to a relationship with other significant people in their life, and that includes their grandparents”. Geoff stated “We had a lot of involvement with the children of the marriage, and we didn’t want that to change because our daughter became separated. We kept up our regular involvement and time with the grandkids’ lives which seemed to help keep things somewhat normal for all of us.”

Rebecca speaks first-hand with clients everyday who are facing separation and advises that “these days there are a lot of tools to support family relationships, especially if there has been conflict. Our Family Wizard is a useful app that many families use to help work out co-parenting arrangements. It supports families when there is both good and bad communication and suggests “keep your time with your grandchildren fun and light. Have a positive attitude, and keep things low-stress. Have ideas for fun things to do that you know they will enjoy and will take their mind off any stress they might be feeling at home. Demonstrate how to stay peaceful and calm even in the face of challenges. Be a positive role model for your grandchildren”.

The challenge for grandparents comes with having to acclimatise to their family’s new sense of normal while being a constant source of support for their grandchildren. Communicating with their adult child is vital to ensure they are always on the same page.

Communication is key to gliding over any bumps that arrive. Rebecca suggests that “communicating with your extended family about what is happening is nine-tenths the real key to these things”. If you run into challenging times “there are a lot of counsellors now that offer family counselling. In these instances they will have parents, kids, grandparents etc. It can be really powerful to support positive relationships moving forward”.

To learn more about The Separation Guide take our Q&A here.
To visit Our Family Wizard you can visit their website here.

REBECCA DAHL | Nicholes Family Lawyers

Rebecca is partner at Nicholes Family Lawyers. She practises exclusively in family law and has a particular interest in complex children’s matters. She has extensive experience in working with clients experiencing family violence, and helping people navigate the Intervention Order process. In addition, she specialises in family law for the LGBTIQA+ community (including egg and sperm donation agreements and co parenting agreements) and was a finalist in the Straight Ally of the Year Category at the Globe Community Awards.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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Are you de facto married?

Understanding de facto relationships, also known as common-law marriage, can be confusing, especially when it comes to your legal rights and responsibilities. It’s natural to feel uncertain about your situation, particularly if you haven’t formally married. This article aims to provide clear and reassuring information about de facto partnerships, helping you navigate this sometimes complex journey.

What is a de facto relationship?

A de facto relationship exists when two people, regardless of gender, live together on a genuine domestic basis and share a committed relationship. Unlike marriage, there’s no formal ceremony or registration required. However, your legal rights and obligations towards each other can be similar to those of married couples if you separate.

There is no specific factor that determines exactly when or whether you and your partner are de facto married. This can be concerning if you break up with a partner and you’re not 100% sure of your position – uncertainty about your legal status as a couple means uncertainty about whether or not your partner has a claim over a share of your property if you separate.

A casual relationship can easily transform into a de facto marriage. If separating, you should be aware of how the law views de facto relationship entitlements.

How do I know if my partner and I are de facto married?

While there’s no single criterion to determine a de facto relationship, several factors play a role. The longer you’ve been together, the more likely you fall under this category, especially if you’ve cohabitated for two years or more. Sharing expenses, property, and finances also contribute. Additionally, having children together, presenting yourselves as a couple to your community, and jointly caring for children from previous relationships contribute to the recognition of a de facto partnership. In some cases, couples have met enough criteria to be classified as de facto in the eyes of the law without actually living together permanently!

De facto marriage applies to both opposite and same-sex couples. It is also possible to be de facto with one person while married to another or to be in multiple de facto relationships simultaneously.

What makes a de facto relationship?

If you answer yes to some or all of these questions, you may be in a de facto relationship.

- - The existence, or previous existence, of a sexual relationship. Have you been in an ongoing sexual relationship?
  - Whether your belongings are mingled. Do you use each other’s belongings as if they are your own?
  - Your lease. Are both of your names on the lease?
  - Your finances. Do you share income, or have a joint bank account? Does one of you support the other financially?
  - Shared debts. Have you applied for a loan or credit card together?
  - The ownership, use, and acquisition of property. Have you jointly purchased real estate or a car? Do you treat your belongings as distinct from each other, or do you use them interchangeably? Do you have belongings that you consider to be shared property? (This includes pets.)
  - The degree of mutual commitment to a shared life. Do you both treat the relationship as long-term? Have you discussed your future together? Have you made changes to your career, or to your plans for yourself, to make the relationship work?
  - Any children of the relationship. Do you have a child, or children together? Do you share care of any children from previous relationships?
  - The reputation of the relationship. How do you present as a couple? Have you identified yourselves to others as de-facto? Have you told friends and family that the relationship is serious?

How do I know if my partner has a claim over my property if we break up – or vice versa?

Just because you are a de facto couple, it does not mean that you have to complete a property split. Your situation needs to be assessed under the 4-step family law process. The court can only make property orders if one or more of the following applies:

The relationship in total has lasted over two years. If you break up and then get back together, you may be able to combine both periods you were together.
You have a child together. This child does not need to be biologically related to both of you – it could be adopted, or the product of artificial conception using donated genetic material from another person.
One or both of you made significant contributions to the other’s property. This will be the case if, for example, one of you has provided substantial financial (or non-financial) support to the other, with the result that their financial position is much better than it otherwise would have been.
The relationship is registered. Some couples do this for one partner to access services or entitlements for married couples. De facto relationships can be recorded on state or territory relationship registers.

What if we can’t agree on whether are de facto?

You will need to seek advice from a family law professional if you cannot agree with your spouse or ex about your relationship status. Take our Q&A to get in touch with someone.

What happens if I break up with my de facto partner?

In many cases, the parties will work out the division of property between themselves and go their separate ways. If you would like a step-by-step guide to do this, you could consider following our DIY Separation Toolkit to help you understand how to do it fairly. We always recommend a meeting with a family lawyer once you’ve reached an agreement to make sure you’ve considered everything and your settlement falls within the margin of fair.

If you can’t agree, or one of you feels you’ve been left in an unfair or poor financial position, you could attempt to reach an agreement with the help of a mediator in a program like Guided Separation, or with independent legal advice.

There is a two-year time limit to carry out a property split, but in practice, the Court will often waive this rule if the person filing has a genuine claim. This means property proceedings may be brought well after the end of the relationship.

Possible orders that the Court might make include:

a property adjustment, transferring the ownership of property from one party to another, or requiring one party to pay a settlement to the other in the form of cash
a superannuation splitting order, causing a portion of one party’s super to be transferred into the other party’s super fund
orders for the payment of child support
a maintenance order, requiring one party to provide ongoing financial support to the other.

If you would like to speak to one of our network partners please take our free 3-minute Q&A here and you will be connected to the best network member in your area for you.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.