Compulsory Dispute Resolution
What is Compulsory Dispute Resolution
Under family law, parties must make a genuine effort to resolve disputes through family dispute resolution before applying to the courts.
Reaching an agreement with the other party offers many advantages, such as:
- you make your own decisions
- you greatly reduce the financial and emotional costs of legal proceedings
- your continuing relationship as parents, if you have children, is likely to work better
- you are able to move forward and make a new life for yourself,and
- you may improve communication with your former partner and be better able to resolve disputes in the future.
The Family Law Amendment (Shared Parental Responsibility) Act 2006 aims to promote a culture of cooperation in Family Law matters, especially in relation to parenting issues.
Changes have been made to the family law system to encourage parents to develop cooperative parenting solutions without going to court. Family dispute resolution is a practical way for separating families to try to resolve any disagreements and make arrangements for the future.
Before an application for a parenting order can be filed, an applicant must provide a certificate with the application to the Court. This requirement applies even if you have preexisting orders in relation to the child that is the subject of the current application.
A court will not be able to hear an application for a parenting order unless a certificate from an accredited family dispute resolution practitioner is filed with the application.
In certain circumstances the court may grant you an exemption from the requirement to file a certificate.
Dispute resolution in children's cases
Conciliation and mediation in children's matters aims to assist couples who have made a decision to separate to reach mutually acceptable solutions as to the future parenting arrangements for their children. Another goal is to help clients address and reduce conflict between them and improve their communication so that they can assist their children and continue parenting roles in a cooperative way.
Conciliation often involves addressing and resolving underlying emotional issues that impede adjustment to separation and interfere with the couple's willingness to cooperate and reach decisions that are in the best interests of their children. Because the filing of documents, and the adversarial nature of litigation, can generate and/or entrench conflict, resolution of disputes is generally maximised when mediation begins prior to, or at an early stage of, litigation.
Prior to filing an application, prospective parties are obliged to consider a number of matters which include:
- the need to protect the interests of children;
- the importance of children having ongoing relationships; the benefits children gain from parents cooperating; the potential damage to a child involved in a dispute;
- the impact of correspondence and the need to avoid hostile and inflammatory exchanges;
- and the need to seek agreements and orders that are realistic and reasonable.
Dispute resolution in financial cases
The Family Court requires people intending to apply for financial orders to follow pre-action procedures, including attending dispute resolution, before filing an application. There are some exceptions to these requirements, such as those involving family violence, fraud or urgency.
In the Federal Magistrates Court, parties intending to apply for financial orders are encouraged to resolve disputed issues before filing an application. In most cases, parties will be ordered to attend family dispute resolution when an application is filed with the Court.
Dispute Resolution Certificate
Before a Part VII parenting order can be applied for, parties to a case must genuinely try to resolve their dispute and evidence of this must be provided in the form of a Family Dispute Resolution Certificate.
Section 60I of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) sets out the stages of, further requirements, and exceptions to, participation in family dispute resolution prior to the filing of applications related to parenting under Part VII of the Act.
The requirement to file a certificate from a family dispute resolution practitioner with a Part VII application applies to all parenting applications, including those seeking changes to an existing parenting order.
Exceptions to the requirement to engage in family dispute resolution prior to filing an application are also set out in section 60I of the Act 2006. These exceptions include:
- matters where procedural or consent orders are being sought,
- matters where final orders are not being sought,
- matters that are urgent, matters where family violence and/or child abuse has occurred or is at risk of occurring were there to be a delay in the application being filed,
- where a Part VII parenting order has been made within 12 months of the application, where the application is made in relation to a contravention of the order,
- and where one or more of the parties is unable to participate in family dispute resolution (such as when no dispute resolution service is available, or due to incapacity).
Grounds for seeking and exception will need to be identified in an affidavit and if the application is being made to the Family Court it may be referred to a registrar to determine whether an exception from filing the section 60I(8) certificate will be granted.
What is Family Dispute Resolution?
"Family dispute resolution" and "family dispute resolution practitioners" are defined under section 10F and section 10G of the Family Law Act. A family dispute resolution practitioner is a person authorised to help people resolve disputes with each other.
Communications with family dispute resolution practitioners are confidential unless consent is given otherwise, or unless there is perceived threat of harm to a person or their property. In addition, generally communications are inadmissible unless there are reasons to believe a child has been abused, or is at risk of abuse.
In order to issue a certificate under section 60I of the Family Law Act, the family dispute resolution practitioner has to be listed on the Family Dispute Register. To be included on the register, individuals or organisations must have met standards of training, suitability and experience set out in the Family Law Amendment Regulations 2007 (No 1).
Dispute Resolution in the Family Court and the Federal Magistrates Court
The Family Court of Australia offers a range of dispute resolution services aimed at resolving disputes and avoiding litigation.
The Federal Magistrates Court may order people to attend dispute resolution services provided by the Family Court Child Dispute Service (previously the Mediation Service), or non-government community based organisations approved by the Department of Family and Community Services.
Clients who attend dispute resolution services at non-government agencies should generally take copies of documents such as court orders and family reports. The dispute resolution services that are built in to the Family Court's case management pathway include:
- case assessment conferences conducted by registrars in matters which involve both financial and parenting issues;
- the Child Responsive Program conducted by family consultants in children's matters;
- conciliation conferences in financial matters;
- some conciliation and counselling under other sections of the Family Law Act.
If an order is made by the Federal Magistrates Court for parties to attend for primary dispute resolution the organisation to which the court makes the referral will contact clients directly to make appropriate arrangements. The non-government organisations have an arrangement with the Federal Magistrates Services to provide up to five sessions free of charge to clients. In certain circumstances the number of sessions provided without cost can be negotiated.
Conciliation has generally been distinguished from mediation by the conciliator possessing expertise in the subject matter of the dispute and thus able to provide clients with advice and opinion as to the matters being negotiated.
Mediation has traditionally been defined as managing a negotiating process and assisting clients to generate solutions without proffering opinion or advice. Conferencing at the Family Court utilises both models and techniques, however, due to the responsibilities the court has in relation to ensuring the best interests of children, and because conferences are conducted by professionals with specialisations in the area of family law, the model has generally been that of conciliation. Every registry of the Family Court has family consultants who are trained psychologists or social workers who provide family dispute resolution services and assessments in parenting matters.
The legally trained registrars provide dispute resolution services when applications have been filed in financial matters and joint financial and parenting matters. The registrars of the Family Court provide conciliation in financial matters that are before the Federal Magistrates Court. In Melbourne and Brisbane some financial mediations are re-ferred to specific non-government agencies who have lawyers who conduct such conferences.
Family Consultants
Discussions with family consultants are admissable and the family consultants are required to report allegations of child abuse and may report any threats of violence to persons or property. Once applications are filed in the Family Court a date for a procedural hearing in front of a registrar will be given, (or a date for a for a case assessment conference in the case of a joint financial/parenting matter). Special arrangements can be made in circumstances where attendance is particularly difficult; for instance, when one party lives at a considerable distance from the registry where the application has been filed, or where there is family violence. Under these circumstances telephone conferences may be arranged.
In situations where there has been family violence, or where one of the parties is in fear of the other party, the court requires notification of this. Under these circumstances special arrangements can be made whereby the parties need not be seen together or at the same time.
Parenting matters filed in the Family Court will be referred to the Child Dispute Services for participation in the "The Child Responsive Program". The program aims to assist parents to focus on their children by providing parents with information and advice about their children's needs at an early stage of legal proceedings.
As part of The Child Responsive Program, the family consultant will initially meet with the parties separately for an "intake and assessment meeting". At a later appointment, children will be seen as a sibling group and individually and be given an opportunity to talk about how the parental separation and conflict is affecting them.
Feedback will be given to the parties and a written "Children and Parents Issues Assessment" will be issued. A settlement conference involving the parties and their lawyers may be arranged if this is thought to be helpful to resolving matters concerning the children's issues.
Family consultants may attend the first day of trial if the matter has not resolved at the end of this program, and the Children and Parents Issues Assessment report will be available to the trial judge. The family consultant will often be asked to give general expert advice and information to the judge and/or parties to assist with establishing the procedures, issues and decisions that will protect and enhance the best interests of children. The family consultant may provide information and suggestions about the family and children's particular circumstances and needs.
Case Assessment Conferences
Upon filing an application for both financial and parenting orders in the Family Court the parties will be allocated a conference date, usually within 6 to 8 weeks of the date of filing. The case assessment conference is conducted by a registrar. Some matters may not be allocated a case assessment conference. This may be where there are urgent interim matters. The matter would instead be listed in a directions hearing list.
The parties and their legal representatives are required to attend the case assessment conference ordered pursuant to rule 12.11 of the Family Law Rules. The parties and their legal representatives are required to have complied with the requirements of the Family Law Rules, Case Management Directions and practice directions prior to the appointment.
The role of the legal representatives at these conferences is affected by the nature of the matter, personalities of the clients and their representatives, and the manner by which the conference is chaired.
Dispute tends to involve early and active participation by the parties to a dispute and it is hoped that legal practitioners assist this process by facilitating clients to negotiate issues and reach appropriate resolution rather than solely using their advocacy skills to speak on behalf of clients.
Case assessment conferences involve a three step process, these being:
- an information session,
- a case assessment conference intervention incorporating assessment and negotiation (if appropriate),
- and a directions hearing.
The case assessment conference has four main goals:
- to provide an opportunity for early settlement negotiations with the assistance of a registrar;
- to assess the dynamics and facts of a case and recommend appropriate dispute resolution services and case management strategies to be implemented by the court in a timely manner;
- to assist the parties to understand the court process and help them prepare for further dispute resolu-tion processes; and
- to identify legal and procedural issues, eg a third party interest in a property matter.
Where settlement is unlikely, a judicial determination and/or the preparation of a family report for a hearing are further options that would be considered. These are likely options where there are serious child abuse allegations and/or matters where it is perceived a negotiated resolution is very unlikely.
The associated directions hearing which is part of the case assessment conference has five main goals:
- to ensure compliance with the Case Management Direction 5.5 and Family Law Rules 12.02;
- to encourage the parties in their settlement negotiations;
- to make directions that are appropriate to prepare the matter for the next intervention;
- to allocate the next return date in a court list or professional appointment for the next intervention to occur, identify the correct Case Management Guidelines pathway and apply individual or differential case management; and
- to provide the parties with an opportunity to have consent orders made immediately.
Family Reports
If a matter has failed to resolve despite mediation and involvement in the Child Responsive Program, a family report may be ordered pursuant to section 62G(2) of the Family Law Act. In most defended children's matters a family report is ordered where the court considers such a report would provide information to assist in the determination of "children's best interests". The court may also bear in mind, when considering whether to order a report, any application for a report made by a party as well as any recommendation contained in the family consultant's memorandum and issues assessment following attempts at dispute resolution.
Family reports are generally required when there is insufficient expert evidence already available in matters where there are complex parenting issues, disputes regarding the wishes of children, disputes about the quality of parent/child relationships, allegations that children are at risk in some way, and in matters where a significant change to existing parenting arrangements are sought.
It is expected the family report would then be released and available up to 5 weeks before the pre-trial conference. It is intended that the family report will provide clients and their solicitors with information that will assist earlier set-tlement negotiations based on expert opinion regarding children's needs and best interests.
Generally, the court will outline the issues to be covered in the report, though the family consultant may also includes any matters he or she thinks is relevant to the proceedings. In matters filed after 1 July 2006 the same family consultant who undertook the earlier interviews with the family members will prepare the family report.
Family reports may be prepared by Regulation 7 of the Family Law Regulations (previously Regulation 8) officers, usually because of staffing levels and waiting lists. Regulation 7 officers are professionals who are approved by the Family Court to prepare reports on a contract basis. The methods used by family consultants in the preparation of family reports will vary depending on the scope of the report. A report may involve one or many interviews, usually including the children and any other significant people. The family consultant will generally determine how, and with whom, interviews and observations are con-ducted. Contacts with other people associated with the family, such as solicitors, doctors and teachers, may be made.
Family reports will vary in length and layout but generally will include a description of the family dynamics relevant to the issues in dispute, a profile of the relevant family members and their interrelationships, attachments of the chil-dren and any views or needs the children may have expressed. It will conclude with a discussion of the various pos-sible outcomes in terms of their expected effects on the children's welfare. It may also contain recommendations and the opinion of the family consultant as to the impact of various outcomes on the welfare of the child. When the report is completed it is released by a registrar, judicial registrar or judge to the legal representatives or the parties. Family Law Rule 15.04 permits the author of a report to be called to give evidence during a hearing in relation to the report.
For more information on Family Reports click here
Expert Witnesses
Expert reports may be ordered in parenting proceedings instead of family reports in particular circumstances which include:
- concern about the psychiatric condition of one or more family members,
- particular medical conditions or developmental problems that require specialist opinion,
- allegations of abuse that require specific expert assessment.
Division 15.5.4 of the Family Law Rules requires a person who is engaging an expert witness to ensure that the expert witness has a copy of the "Guidelines for Expert Witnesses and those instructing them in proceedings in the Family Court of Australia". This is not intended to apply to treating experts (such as GPs or teachers) who have not been engaged as expert witnesses but provide expert evidence to the court by reason of their involvement with the parties and/or the matter. Similarly it is not intended to apply to the family consultants of the Court or Regulation 7 counsellors.
Get legal advice
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also explain and help you reach an agreement without going to court.
You can get legal advice from a:
- legal aid office
- community legal centre, or
- private law firm.
Disclaimer
The Family Law Blog provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a Court.
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