With the upcoming commencement of the newly merged Federal Circuit and Family Court of Australia (FCFCOA), the courts have issued further detail around the operation of the new system. In particular there will be a heavy focus on finding ways to help parties resolve their family law disputes using alternative dispute resolution processes instead of litigation.
(Family law dispute resolution…continued)
With all the benefits that dispute resolution offers, it’s great that the courts have formalised their case management pathway to have a significant emphasis on keeping parties out of court. And for those parties that do proceed to a contested hearing, dispute resolution will have had the benefit of better identifying the issues in dispute.
As you may be aware, prior to going to court for parenting matters, parties have always been required to attempt dispute resolution and obtain a section 60I certificate which proves that this has taken place. Now, the same process will also apply to property matters.
From the date of filing, parties will be expected to have attended dispute resolution within 5 to 6 months. For both financial and parenting matters.
The courts will focus on helping families find the best type of dispute resolution for their particular matter. It will ensure families have access to information about their options and what they should do to prepare for dispute resolution to give it the best chance of succeeding.
How will parties prepare for dispute resolution?
There are some guidelines for how parties will need to prepare for dispute resolution conferences. Parties will need to make sure they are fully informed of their legal rights and responsibilities. They need to be aware of the reality of proceeding with litigation to a contested hearing, including practical and financial impacts.
When attending dispute resolution, they should bring their proposed minutes of orders that they are seeking. They should also have spent time identifying where there might be areas of agreement or where compromises could be made so that the matter can be resolved. A good faith effort is needed at dispute resolution, with parties needing to “use their best endeavours to reach agreement at all dispute resolution conferences”. If safety is an issue, which can impinge on the ability to meaningfully negotiate at dispute resolution conferences, this can be raised with a Registrar who will take the issues into account.
What kind of options exist?
The expectation is that parties will undertake dispute resolution, and this can take a number of forms. It might be “court-based family dispute resolution conferences or conciliation conferences, it might be privately funded dispute resolution, mediation or arbitration (for property matters only). Here’s a quick rundown of three popular methods of alternative dispute resolution: mediation, arbitration and collaboration.
Mediation is a common way to resolve family law disputes outside court, and in fact must first be attempted by parents if they wish to start parenting proceedings in the family courts.
It is a process where a third party (a qualified mediator) steers the process of trying to find middle ground and a resolution to disagreements. Both parties are to agree on the mediator and the mediator then acts as an independent intermediary. Meetings between parties and the mediator aim to identify each party’s position, goals and objections, and the mediator will help the parties reach an agreed financial settlement and/or workable parenting arrangements.
Unlike litigation and arbitration, mediation is an autonomous and more empowering process, because the parties have control over the outcome – a successful mediation is where the parties reach an agreement, rather than have an outcome imposed by a third party (like a court, or an arbitrator). The role of the mediator is simply to facilitate discussion and control the process, but it’s the parties who retain the decision-making power over whether to accept a solution.
Arbitration is a substitute for going to court which works like a private family court hearing. Parties hire lawyers and a professional (a qualified arbitrator with specialised training, frequently a retired family court judge or senior family law barrister) who runs the case. The parties present their arguments and evidence before the arbitrator who then rules on the resolution of the dispute.
Parties retain substantial control over the timing and the degree of formality or informality involved. It’s also possible to arbitrate a single aspect of a case (for example determining the value of a business or asset or establishing issues of fact in dispute) which may be holding up settlement of a case.
With collaboration, the aim is to reach an outcome through mutual respect and a “win-win” solution as much as possible, rather than adversarial litigation outcomes which typically result in a “winner” and a “loser”. It’s a much more efficient process and involves the smarter use of resources with everyone’s energy focused on finding truly workable solutions for the family as a whole.
Each party retains their own lawyer and other professionals who may range from financial advisors to mental health professionals and child specialists. The professionals work to show parties where interests and goals are aligned, and work to facilitate child-friendly, mutually acceptable negotiated settlements.
The emphasis in a collaborative approach is on transparency and cooperation rather than conflict (parties agree to stay out of the courts while within the process), and on finding mutually agreeable solutions. Information is shared and issues are discussed openly and honestly. It is fundamentally interest based process, rather than a rights based process. Alliance Legal Services has a special interest in collaborative family law. We have collaboratively trained lawyers who can discuss with you whether the process is suitable for your separation.
All of these dispute resolution processes are faster, more cost-effective, less stressful, and provide more control over the final outcome. But choosing the process best suited to you will depend on many factors (including willingness to cooperate, capacity to spend, etc.). For advice on which process will be best suited to your matter, please give us a call.
Source: Family Court of Australia
For legal assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.