In property settlement matters, the court expects separating couples to take every opportunity to attempt to resolve their matter by negotiating and reaching their own agreement. Even if a person has applied to the court for a decision, the court will usually ask the parties to try at least once more to resolve their dispute themselves.
When the total property pool is less than $500,000, the court can order that the parties attend a conciliation conference. A conciliation conference is similar to a mediation, but the mediator is a registrar of the court, and the fee that is charged is a fixed- fee payment to the court, rather than a larger fixed fee, or hourly rate, which is common in private mediations.
If either party has a lawyer, then the lawyer also attends the conference, and is present throughout to provide advice and help about making, considering, accepting or rejecting offers of settlement.
Before the conference
Before the conference, there needs to be an agreement about what the assets, liabilities and superannuation balances of the parties are, and what their value is. If there is disagreement about the value of any asset or superannuation interest, then a valuation must be obtained. Lawyers help with this. Usually, the parties will instruct a single expert to value the disputed item. This means that both parties are involved in engaging the valuer, and both parties must accept the valuation given.
Once the conference starts, discussions are confidential. That means that an offer made during the conference cannot be reported to the court at a later date, or revealed to anyone who was not at the conference, except in a few rare circumstances. This confidentiality is designed to encourage all involved to come to the conference willing to make their best and genuine offers to reach an agreement about how to divide their property.
Reaching an agreement
If no agreement is reached, a report is prepared for the judge. This report will not contain any confidential details, but will include information about whether partial agreement is reached. For example, parties may be able to agree that an asset should be sold, but may not be able to agree how the proceeds should be divided.
If agreement is reached, often the parties will sign a written agreement there. That signed agreement, with a more formal, typed version, is then provided to the court so that the judge can formally pronounce the order.
Sometimes, it is not possible to sign a written agreement at the conference. This may be because some further steps need to be taken before a final agreement can be reduced to writing. In those circumstances, the parties sometimes sign a different document, which sets out in general terms the agreement the parties have reached (which, for example, may be that the assets are split equally, or that one person is keeping House A and the other party is keeping House B), and notes that a more detailed agreement will be entered into as soon as possible.
A conciliation conference is a valuable tool when used correctly to help parties to reach an agreement about their property settlement matters and avoid long and costly court intervention, where appropriate.
For advice or representation in any legal matter, please contact Armstrong Legal.