Tips for a successful family law mediation: preparation is key

Mediation can be an effective process for resolving a dispute. It is a mutual decision to dedicate time and resources to exploring issues in dispute and possible resolutions, or at least ways to narrow the dispute.

However, a mediation requires preparation. This blog is designed to identify key aspects of preparing for a mediation, to assist you and ensure you are ready to mediate.

Mediations are much more successful where a matter is ‘ready’ to mediate. For example -

• In a property matter, this may mean that you have exchanged disclosure documents and you can determine the ‘matrimonial pool’ of assets, liabilities and superannuation. You should have had time to obtain valuations (if values are not agreed) and time to consider those valuations.

• In a parenting matter, this may mean that you have exchanged any relevant information (for example, when parents discuss possible schooling options, enrollment information, and school results, this can be helpful information to consider).

• In some cases, it can be helpful to mediate when interim arrangements have been in place for a period of time, to determine the most suitable arrangements for the future, or after a parent has fulfilled certain requirements, such as completing a parenting course or undergoing necessary testing (for alcohol or other substances).

If you are missing salient information or disclosure, it may be wise to reschedule mediation to a date after which that information is made available. Short or half-day mediations can be useful to narrow issues in dispute or determine an interim pathway forward to obtaining the information necessary to resolve a matter on a final basis.

Another aspect of preparing for a mediation relates to your mindset, which may be surprising but can be crucial to achieve a successful outcome at mediation. For example -

•  On the day of the mediation, you might need to make decisions in the heat of the moment and under pressure. For this reason, it is important to consider possible outcomes in the weeks or days leading up to mediation. You should consider the best possible outcome, and also your ‘worst’ possible outcome. This will provide you with a framework within which you can make decisions. Mediators often say that the best outcome is an outcome that you and your former spouse can ‘live with’.

• Try to think creatively. What are the key outcomes for you? What will the key outcomes be for your former spouse? Whilst a good mediator will identify these and work to find unique solutions, if you have thought about outcomes before the mediation takes place, you might be more open to negotiating a settlement which you might not consider if you are only thinking about settlement options on the day of mediation.

• Think about what may support you on the day, including the little things. Do you need a support person to be present with you, or a friend or family member you can phone to calm your nerves? Do you need a water bottle and snacks? Do you need a specific type of tea or a fidget/sensory toy?

Even if you do not ultimately attend your mediation with a lawyer, it is prudent to obtain legal advice prior to any mediation. This can help you to take stock of the issues in dispute and consider possible outcomes. Your lawyer will be a sage sounding board, providing you with honest and tailored advice having regard to the Family Law Act 1975 and matters similar to yours. You will know where you stand and hopefully be able to avoid making a decision that you may regret later.

If you are considering how best to prepare for a mediation, wondering whether your matter is ready for mediation, or if you would like advice about settlement options and a range of outcomes, our specialist family lawyers are here to guide you. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

Family law in plain English

Sometimes people may feel like their family lawyer is speaking a different language. As family lawyers, we sometimes use words or phrases that are new to clients. Here is a list of some commonly used terms and a brief definition:

• Property pool – The pool of assets, liabilities and superannuation of both parties to a relationship, either owned by both of them jointly, or individually as at the current date. A property pool will include assets, liabilities and superannuation acquired before or during the relationship, or after separation. A property pool may include real property, cars, credit cards, bank accounts, personal loans, home loans, shares, business interests and superannuation, among other things.

• Property settlement – The formalisation of the division of the property between two parties following the breakdown of their relationship. Property settlements between married couples are guided by section 79 of The Family Law Act 1975 (Cth). For a property settlement to be legally binding, it needs to be formalised in one of two ways, being by Consent Orders or a Binding Financial Agreement.

• Consent Orders – Orders made by the Federal Circuit and Family Court of Australia (or a Court will delegate jurisdiction to make the Orders, such as the Local Court) by consent between the parties. These Orders can be obtained by filing an Application for Consent Orders or by resolving family law proceedings before the Court by consent, as opposed to having orders made by a judge for you, after a hearing.

• Binding Financial Agreement (BFA) – A contract made between two parties under The Family Law Act 1975 (Cth), which sets out how assets are to be divided following a separation. In the United States of America, these agreements are commonly referred to as “pre-nups”. Despite what the American term might suggest, a Binding Financial Agreement or BFA can be entered into before or during a relationship or after separation, in Australia.

• Divorce – The process of legally ending a marriage. The divorce process does not deal with property division or care arrangements for any children. It is simply the process of becoming legally unmarried. To obtain a Divorce Order, a party, or both of them, must file an Application for Divorce with the Federal Circuit and Family Court of Australia and pay a filing fee, which is currently $1,125.

• Just and equitable – When a property matter is resolved either by consent or decision by the Court, the Court must consider whether the outcome is “just and equitable” having regard to the specific circumstances of the case. The principle allows for some fluidity in circumstances where a strict application of the law may not necessarily result in a fair and reasonable outcome for one or more of the parties involved. It is a consideration to be made by the Court, not by either of the parties.

• Spousal maintenance – Payments made by one party to another to assist the receiving party in meeting their living expenses. Spousal maintenance payments can be paid as periodic payments for a specified period of time or as a lump sum. In determining whether spousal maintenance payments are appropriate, the Court will assess what each of the parties reasonable living expenses are and what their income is and come to a decision about whether one party needs additional funds, and the other party has the capacity to pay the other. This is separate from a property settlement.

• Best interests of the children – When determining parenting matters, the paramount consideration is the best interests of the child/ren. Section 60CC of the Family Law Act 1975 sets out what the Court needs to consider when determining what is in the child/ren’s best interests. This includes:

  1] the safety of the children;

  2] the children’s views;

  3] the developmental, psychological, emotional and cultural needs of the children and the ability of parents and/or caregivers to meet those needs;

  4] the benefit of children having relationships with their parents and other significant people; and

  5] anything else that is relevant.

• Care/parenting arrangements – This refers to the arrangements that are in place for the children. They include who makes the major long-term decisions for the children, where the children live, what time they spend with each of their parents, the school holiday arrangements, telephone/FaceTime contact between the children and their parents, and what the arrangements are for special occasions such as Father’s and Mother’s Days and Christmas, etc.

• Decision making/parental responsibility – Decision making is the authority to make major long-term decisions in relation to the care and welfare of the children. This includes decisions made in relation to where children go to school, their religion, their name and their health. A court may make an order that one or both parents have the ability to make decisions about the children.  Parental responsibility is the power, duties and responsibilities that one or both parents have in relation to the children. Absent an order to the contrary, both parents have parental responsibility for their child/ren.

• FCFCOA – The Federal Circuit and Family Court of Australia. This is the Court that has jurisdiction to deal with family law matters and determine issues in accordance with the Family Law Act 1975 (Cth). The FCFCOA deals with both parenting and property family law matters in Australia.

• Independent Children’s Lawyer (ICL) – A lawyer appointed by the Court to represent the children’s best interests independently from either of the parents. They do not act on the children’s instructions, but rather give an independent and impartial perspective to the court based on evidence provided by the parents and/or other experts, such as a psychologist.

You can find additional information about any of the terms referred to in our other blogs.

If you would like to discuss how any of the matters raised in this blog impact you, or your family law matter more generally, please get in touch with us.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Addbacks in Property Settlements: Shinohara v Shinohara [2025] FedCFamC1A 126

The Full Court of the Federal Circuit and Family Court of Australia recently confirmed in Shinohara v Shinohara [2025] FedCFamC1A 126 that 'addbacks' are to no longer form part of the balance sheet in property proceedings. This results from the Family Law Amendment Act 2024, which came into effect in June 2025.

Previously, Courts could notionally “add back” assets that no longer existed at the time of a hearing, for example, money that has been wasted or spent by one party on legal fees. Even though the asset no longer existed, its value could still be included in the asset pool for division.

The Court has now confirmed that only existing property at the time of trial is to be included in the balance sheet for division. Williams, Altobelli and Campton JJ state at [121] “The text of s 79(3)(a)(i) is clear. Only the existing property of the parties is to be identified, and only that existing property is to be divided or adjusted.”

Notwithstanding the above, the principles underpinning the existence of addbacks have not been disregarded entirely. Williams, Altobelli and Campton JJ continue at [125]: “s79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage.”

The Full Court further noted: “The holistic approach in assessing and determining contributions and adjustments thereto…remains applicable. Each of the considerations, by either s 79(4) or s 79(5), requires engagement with the circumstances of the disposal of property, the value it achieved, and its use and application being considered and weighed to achieve the mandate of justice and equity that permeates s 79 of the Act” [126].

The conclusion reached by the Court in Shinohara suggests the approach taken to the disposal of assets in property proceedings will need to change. Parties can no longer rely on assets being notionally added back to the property pool and will instead need to seek that these matters form part of the Court’s holistic assessment of the parties’ current and future circumstances.

You may wish to seek specialist family law advice about your circumstances, particularly if you are concerned your ex-partner is reducing your combined property pool. If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Guiding you through Family Court proceedings – Dispute Resolution

If your matter is already in Court, you may be wondering what happens next. Whilst you may be aware of the initial steps, the procedural pathway isn’t always clear to parties involved in Court proceedings.

The first time that your matter comes before the Court is usually the first return (see our blog post about the first return here if you have not already). If there are issues in dispute which require immediate determination, it may be necessary for your matter to be listed for an interim hearing (see also here for our blog post about the interim hearing).

After your matter has been listed for a first return and/or interim hearing, the next time your matter comes before the Court will likely be for a further directions hearing where a Judicial Registrar is likely to make orders about the future progression of your matter. This can occur at a further directions hearing; orders can be made at the conclusion of an Interim Hearing; or judicial officers will often grant leave to parties to provide consent orders for the Court’s consideration if the parties reach agreement about procedural matters (on an interim or final basis about any issues in dispute).

After any necessary interim hearing and prior to your matter being listed for a final hearing, it is likely that a judicial officer (such as a Judicial Registrar, a Senior Judicial Registrar or a Judge) will require parties in a matter to participate in dispute resolution. Dispute resolution can include a mediation, a family dispute resolution conference or a conciliation conference. The dispute resolution process can be Court-based or external, such as a private provider or through Legal Aid.

In a property matter where both parties have funds and financial resources available to them, parties may choose to participate in a private mediation whereby they select their preferred mediator. Orders providing for the parties to participate in a private mediation can usually be reached by agreement.  If there is disagreement about the proposed mediator and/or payment of the mediator’s fees, a Judicial Registrar can make orders to determine these issues.

Alternatively, the Court can make orders providing for the parties to participate in a Court-based dispute resolution process, on the basis the Court is satisfied that this is appropriate, having regard to the means and resources available to the parties.

In a property matter, parties may be ordered to participate in a Conciliation Conference with a judicial registrar. A significant benefit to participating in this dispute resolution process is that if you reach a final agreement on the day, orders can be made to finalise your matter, and you can exit the Court system.

Parties are expected to engage in good-faith negotiations and make a genuine effort to resolve issues in dispute. At the conclusion of the dispute resolution process, a dispute resolution certificate is issued by the judicial registrar. If the Court finds that a party has not participated in good faith and/or has not made a genuine effort to resolve the issues in dispute, there can be cost consequences as a result of a party’s actions.

Prior to participating in a dispute resolution event, parties are expected to exchange relevant financial disclosures and, for property matters, obtain updated valuations if necessary. In a parenting matter, it can often be useful to participate in dispute resolution following the release of an expert report, such as a Child Impact Report or a Family Report.

If you are at the stage of your matter where you are considering participating in a dispute resolution process, it is worthwhile to engage a family lawyer to advise and guide you. A family lawyer will be able to identify any steps that need to be taken before participating in a dispute resolution process, and provide you with guidance as to possible settlement outcomes. They can also make sure you have the best possible chance of success in a dispute resolution process.

Our specialist family lawyers here at Robinson + McGuinness can assist you at any stage of your matter, including at the dispute resolution process.  To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

What do I need to disclose? Changes to the duty of financial disclosure under the Family Law Act 1975

During family law negotiations and proceedings, all parties have an ongoing obligation to provide full and frank financial disclosure.

From 10 June 2025, the importance of the duty of financial disclosure has been elevated. The Family Law Amendment Act 2024 has codified the duty of disclosure by inserting new disclosure provisions in the Family Law Act 1975.  This new framework provides parties and practitioners with clarity about the scope of the duty and the consequences of failing to comply with the duty.

The duty of disclosure is now part of the Family Law Act 1975 under sections 71B (in the case of marriages) and 90RI (in the case of de facto relationships). The new sections confirm the following:

1. Parties have a duty to both the court and each other to provide ongoing full and frank disclosure on time;
   If you receive a reasonable request for financial disclosure from the other party, it should be answered in a reasonable timeframe. You are also entitled to ask for the equivalent disclosure of the other party, so long as it is in their possession or control.

2. The duty applies for the duration of the proceedings.
   This includes from when negotiations commence until final orders or a financial agreement are made.

3. The Court has the power to impose consequences on a party if they do not comply with its duty of disclosure.
   The Court may:

   1. Take the failure into account when making an order for the alteration of property interests under section 79;

   2. Make any orders concerning disclosure that the court considers appropriate;

   3. Make an order for costs that the court considers just;

   4. Impose sanctions;

   5. Punish a party for contempt; or

   6. Stay or dismiss all or part of the proceedings.

4. The duty extends to information known to the party and documents that have been in their possession or control, as well as information and documents prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

   This includes information and documents relating to a party’s income and any of their financial resources, assets, liabilities and superannuation. Some documents that are often requested or exchanged are bank statements, tax returns, superannuation statements, share statements and online car valuations.

5. There is now a higher standard expected of legal practitioners when advising clients about their duty of disclosure.

   Legal practitioners must provide their clients with information about their duty of disclosure and the consequences of non-compliance with their duty of disclosure. Legal practitioners must also encourage clients to take all necessary steps to comply with their duty of disclosure.

If you are unsure about your legal obligations in relation to the provision of financial disclosure, you should seek legal advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

ACT Reforms: Family Violence Lease Terminations and how they may impact you

On 10 December 2024, a number of reforms to the Housing and Consumer Affairs Legislation Amendment Act 2024 came into effect in the ACT. The reforms are aimed at increasing safety measures for renting families experiencing family violence. If you have experienced family violence, you can now break your fixed term lease immediately and without penalty.

To end your lease immediately and without penalty, you must complete a ‘family violence termination notice’ and provide notice to your landlord or managing real estate agent in writing, by email, post or in person. The family violence termination notice is available on the ACT Government website and via this link.

You may end your tenancy agreement on the vacating date in your notice. Rent is payable up until your vacating date, but you will not be subject to any break lease fees.

To establish a ‘family violence termination’ as a tenant, you will need supporting documentation; such as a family violence order, a family law order (being an injunction under section 68B or section 114 of the Family Law Act 1975 (Cth)) or a declaration by a competent person (such as a mandated reporter if dependent children are involved, DVCS employees, CYPS employees or eligible social workers).

Upon providing notice and your supporting documentation, your landlord will not be able to ask for any further documentation and is subject to certain confidentiality requirements. Your landlord is only able to share your family violence termination notice with a limited number of people, including their agent, an employee of their agent and the ACT Government. Your landlord is also able to share the notice with their lawyer, to obtain legal advice.

Your landlord cannot inform any co-tenant that you are leaving prior to your vacate date - any co-tenant will be informed within 7 days following your vacate date. The landlord must issue a co-tenant with a ‘notice of continuing tenancy’ which will alert the co-tenant to the fact you have provided the landlord with a family violence termination notice. The co-tenant may then choose to continue their tenancy agreement (paying the full rent for the property), or end their tenancy agreement (subject to any applicable notice periods). This form is available on the ACT Government website and via this link.

For those living in Housing ACT properties, you should not complete a family violence termination notice unless you have found alternate housing outside of your public housing tenancy. Housing ACT has a number of other supports available to those experiencing family violence - see more via this link.

If you are a victim of family violence or need assistance in navigating leaving a relationship safely, you can make an appointment with one of our experienced family lawyers at Robinson + McGuinness. To arrange an appointment by email contact us at info@rmfamilylaw.com.au or call us on 02 6225 7040 or get started now online.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

Author: Anika Buckley, Associate