Court should become the last resort for resolving family parenting and property disputes!

The Crisis in the Family Court System

There are numerous media reports about the fact that the Family Court system is in a state of crisis. There are long delays in the resolution of parties’ disputes by the Court and this causes much angst for the parties and their children often resulting in mental health issues for all involved but is especially concerning in children. One recent article on the topic is from Katherine Gregory entitled Judges go public: Family Court shouldn’t be ‘making do’ . Fingers are pointed in various directions to cast blame depending on who you listen to including that there is a chronic lack of funding and resources, that the aggressive attitude of some lawyers is to blame and so on.

As a significant measure, in an attempt to address the existing crisis in the Family Court System, the Federal Attorney General announced some months ago, quite unexpectedly and without much apparent consultation, the merger of the Family Court with the Federal Court. There has been substantial criticism about this measure, for example by the Law Council of Australia President, Morry Bailes who stated:

“Our current understanding is the Australian Government will not make any new appointments of judges to the specialised Division 1 of the new court, meaning the quality of the family law justice system would reduce under this change. Australians may no longer have access to a court that specialises in family law.”

The message from various Judges and other people involved in the Family Court system is that a Court having to resolve a family law dispute should be the last resort.[1]

Alternative Dispute Resolution

Former Federal Circuit Court Judge, now barrister, Stephen Scarlett suggested that alternative dispute-resolution methods, like mediation and arbitration should be more prevalent so only matters needing a judicial decision made it to court in the first place:

“Only those that can’t be resolved that way should go to a hearing.” [2]

This would not only reduce the load on the courts but offer faster and often more effective means to achieve suitable outcomes for the parties in dispute. Alternative dispute resolution offers many ways to resolve family matters quickly, fairly and inexpensively through mediation and negotiation.

In some circumstances the ADR process cannot be applied:

  • There always must be a level playing field between the parties involved in the process.
  • Sometimes, the parties are not suitable.
  • There may be a history of domestic violence in a case which makes the prospect of parties having to negotiate via an ADR process inappropriate.

However, in the clear majority of cases, about ninety-five per cent (95%) parties want to resolve their dispute and they manage to resolve their family law dispute before the matter reaches a final hearing. [7]

The family lawyers at elringtons are committed to following all avenues of negotiation and mediation before suggesting court proceedings.  Elringtons has two family lawyers, Carlos and Anya, who are nationally accredited mediators , Carlos is also a NSW Family Law Accredited Specialist.

To contact Carlos or Anya or to make and appointment in either our Canberra or Queanbeyan office:

Carlos Turini: Accredited Specialist Family LawSpecialist accreditation and Nationally Accredited Mediator

e: cturini@elringtons.com.au  | p: +61 2 6206 1300

Anya Aidman: Family Law Solicitor and Nationally Accredited Mediator

e: aaidman@elringtons.com.au | p: +61 2 6206 1300

(+1 rating, 1 votes)
Loading...

[1] https://www.lawcouncil.asn.au/media/media-releases/as-it-stands-merging-courts-unlikely-to-alleviate-family-law-crisis

[2] https://www.abc.net.au/news/2018-10-31/judges-go-public-family-court-shouldnt-be-making-do/10450514

[3] https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx

[4] https://elringtons.com.au/2018/11/family-law-dispute-resolution/

[5] http://www.mondaq.com/australia/x/170796/Arbitration+Dispute+Resolution/Alternative

[6] Ibid.

[7] https://elringtons.com.au/2011/03/family-law-settle-out-of-court/

The many stages in your family law matter

Are you going to Court?

The many stages in your family law matter

A number of clients start off their initial appointment with me saying something like:

“I definitely don’t want this to end up in Court.”

And what I like to impress upon them is this:

“Keeping your matter out of Court is absolutely our objective. The optimum outcome is when parties resolve their dispute without going to Court.”

About ninety-five per cent (95%) of all family law matters settle.  That number of settlements includes matters settling at different stages of the case including, sometimes, after court proceedings have commenced. Sometimes, matters settle “at the steps of the Court” on the day of the final hearing

Going to Court /why parties commence Court proceedings?

There are many reasons why parties commence Court proceedings. Normally, parties do so reluctantly when other methods to resolve a dispute have failed. Sometimes, parties commence proceedings as a strategic move to force the other party to end the dispute. In our experience the most common reasons why our clients decide to commence proceedings are:

  • The other party is refusing to engage in negotiations, for example, ignoring correspondence, failing to respond to requests for disclosure, failing to engage a solicitor;
  • Where mediation/counselling has been attempted and was unsuccessful, with limited signs of ability to resolve any practical issues;
  • Due to urgency, for example, relocation or removal of children, in circumstances of dire financial hardship and property matters and so-on.

The Different Stages in a Family Law Matter

We welcome you enquires with our Family Law Team.  We are committed to resolving your matter at the earliest stage possible in your Family Law dispute.   We will work with you to develop solutions to your problem, and do our utmost to ensure that we do so in a timely and cost effective manner.

We aim to resolve your matter amicably and through alternative dispute resolution, without the need to resort to costly and time consuming litigation.  In the event that we do need to engage in litigation for you, we are experienced and well equipped to defend your interests and progress your matter successfully through the Court system.

For more information or to make an appointment with a Family Law Solicitor in either our Canberra or Queanbeyan office use our contact form or contact:

e: aaidman@elringtons.com.au     | p: 02 6206 1300

e: cturini@elringtons.com.au         | p: 02 6206 1300

 

Family Dispute Resolution

Resolving family disputes without going to court

The family law system encourages parties to discuss and negotiate parenting arrangements and property settlements without resorting to taking the matter to court. Family Dispute Resolution (“FDR”), is the legal term for services that help people going through separation to resolve their family disputes. It is a form of mediation. FDR can be useful for many areas of family law including issues relating to property, children, child support, and spousal maintenance.

Is it compulsory?

Whilst FDR is not compulsory for property matters, it is compulsory for parenting matters unless you can satisfy one of the following:-

  • You are applying for Consent Orders (i.e. have reached an agreement without needing FDR);
  • You are the respondent in the proceedings;
  • The matter is urgent;
  • There has been, or is a risk of, family violence or child abuse;
  • A party is unable to participate effectively i.e. due to incapacity; or
  • A party has contravened Court Orders and shown serious disregard to a Court Order made in the preceding 12 months.

elringtons can provide you with advice on whether your situation fits within these exceptions.

FDR services are provided by a number of accredited organisations and accredited private mediators including Family Relationships Centres located throughout the country, Relationships Australia and the Conflict Resolution Centre located in Civic in Canberra. . You call the Family Relationship Advice Line on 1800 050 321.

elringtons can recommend a number of accredited individuals mediators and counsellors who provide FDR services. Waiting periods for appointments for FDR practitioners can be common, in urgent circumstances elringtons arrange an appointment for a mediation session within a short period of time.

How do I prepare for an FDR Conference?

Normally, the mediator/counsellor arranges to meet each party individually before the joint mediation session or sessions commence. The mediator/counsellor will inform each party about the process, the preparation to be made by each party for the mediation session and he/she will also take the opportunity to ascertain the suitability of the parties to undertake mediation/counselling.

It is not the role of the FDR practitioner to advise the parties about the law and it is essential that each party obtain advice from a family law solicitor to become informed about his/her legal rights and obligations.

Some people try take control of the agenda and decide what is included and what is excluded. A good mediator will try to ensure that such tricks are not applied in FDR conferences. He/she will also address any power imbalance that may exist between the parties. The FDR practitioner will suggest to the parties to keep an open mind about possible outcomes that may be arrived at mediation even unexpected outcomes.

In any case, it is important for a party preparing for an FDR Conference to reflect and plan strategically. Again, the advice from the family law solicitor should include strategic and tactical possibilities.

What happens in an FDR Conference?

Before you start FDR, your FDR practitioner must tell you about the FDR process, your rights, his or her role, qualifications, and the fees charged. If you are trying to resolve a disagreement about your children, the FDR practitioner must give you information about parenting plans and other services available to help you. More information on costs can be found at Family Relationships Online.

An FDR Conference may be lawyer inclusive or alternatively the parties meet alone with the FRD practitioner. Once an FDR conference is arranged the parties meet with the FDR practitioner in separate rooms initially, in appropriate cases their lawyer will be present. If suitable the FDR Practitioner may assemble both parties to talk in a third room together with the practitioner acting as mediator. During the session, the parties may from time to time withdraw to their separate rooms if required.

If you have concerns for your safety you should make the mediator aware of these concerns. It is possible for the mediator to conduct the FDR conference in a shuttle-style manner, i.e. with you and your former spouse in separate rooms.

What happens after you come to an agreement?

If you and your former spouse are able to reach an agreement at an FDR conference you will not only save time and money but also a whole lot of stress. Additionally, the agreement you and your former spouse reach is an agreement which you have both consented to. There is finality and the outcome is not mandated by the Court, who often knows little of your personal circumstances. The chances of a lasting agreement are extremely high because it is reached through mutual participation.

In the event you are able to reach an agreement with your former spouse, this can be drawn up into Consent Orders or a Parenting Plan.

What happens if you don’t come to an agreement?

If you and your spouse are unable to reach an agreement, the mediator may provide either you or your former spouse with a certificate pursuant to section 60I of the Family Law Act 1975, commonly referred to as a section 60I certificate. This certificate will enable you to commence proceedings either in the Family Court of Australia or the Federal Circuit Court of Australia. The certificate will say one of the following things:-

  • That you and the other party made a genuine effort to resolve the dispute at hand;
  • That you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute;
  • The other party did not attend;
  • The FDR Practitioner determined that your case was not appropriate for FDR; or
  • The FDR Practitioner determined it was not appropriate to continue with the conference part way through the FDR process.

You should be aware that everything you say in a FDR conference is confidential and cannot be used against the other party should you then decide to take the matter to court. However, in limited circumstances, the mediator may need to disclose what was said (i.e. if a threat is made to someone’s life, the commission of a crime or allegations of child abuse are raised).

Should you have any further questions in relation to FDR and the services available, please do not hesitate to contact:

Carlos Turini https://elringtons.com.au/wp-content/uploads/2011/07/Specialist-accreditaion.jpg

e: cturini@elringtons.com.au | p: 02 6206 1300

 

To mediate or not to mediate?

Alternative Dispute Resolution in Family Law

By Anya Aidmananya bw 2 cropped

When it comes to alternative dispute resolution (“ADR”), there is never a ‘one size fits all.’ Every dispute is different. Not all disputes are suited to ADR, and there may be some cases – for example in the instance of domestic violence or unacceptable risk to a child – where litigation is the only way to fairly and properly adjudicate the matter between parties.

However, in the majority of family law cases, ADR can be not only an incorporated process; but in fact a central vehicle for the resolution of the dispute between parties.

ADR such as negotiation, mediation and arbitration often achieve much more timely, cost effective outcomes for parties than traditional litigation. This is so for many reasons, but primarily because in engaging with ADR, the parties are the arbiters of the method and manner of their dispute resolution.

Being bogged down in the court system can unfortunately mean many months if not years before a dispute is resolved. In contrast, parties can engage in ADR at any point in their dispute journey. It may be that parties decide to mediate when the dispute first arises, to help them resolve issues early; or to negotiate or arbitrate while the matter is already in court, to save time and litigation expense, once some of the legal issues and materials have been ventilated isn’t earlier litigation stages.

Mediation has the key benefits of:

  1. Empowerment;
  2. Recognition; and
  3. Self-determination.

Parties can feel empowered by taking responsibility for their matter. Mediation also enables parties to feel heard and recognised. It allows parties to recognise the rights of others and to seek recognition. Finally, self-determination can enable parties to reach more durable dispute resolution outcomes, and have genuine “buy in” into any solution reach.

In terms of the “who” and “how” of ADR and mediation – the possibilities are as broad as your imagination.

Two of the most common ADR methods which we see are lawyer-assisted negotiation, and mediation.

You can engage in lawyer assisted negotiation – where parties attend a negotiation while legally represented. The benefit of this method is that parties are assisted in narrowing down the issues between them and in understanding their respective legal positions. Having a lawyer present to negotiate on your behalf is also important in circumstances of power imbalance.

You can choose to engage in mediation – either with or without a lawyer. It is open to parties to approach a mediator who will mediate or arbitrate the dispute between the parties without lawyers. Such an approach is best suited to simple matters where parties are generally in agreement on the parameters of their dispute. More commonly, parties attend mediation with their lawyers. Their lawyers are able to distill the relevant legal and other issues, and to assist the mediator in a more structured approach to the resolution of the dispute.

For more information speak to one of our experienced dispute resolution practitioners. We are able to assist you with negotiations, mediation and anything in between.  Contact:

Anya Aidman

e: aaidman@elringtons.com.au       | p: 02 6206 1300

Carlos Turini http://elringtons.com.au/wp-content/uploads/2011/07/Specialist-accreditaion.jpg

e: cturini@elringtons.com.au           | p: 02 6206 1300

Family Law: Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is a term that has become commonly used surrounding litigation. In relation to any family law dispute, ADR is now a compulsory requirement.

As the term implies, ADR is an alternative to litigation and it includes:

  • Mediation
  • Counseling
  • Family dispute resolutions
  • Negotiations between parties to reach an agreement.

ADR is very successful in family law matters

Approximately 95% of family law disputes settle. Court are required to hear approximately 5% of disputes. The figures speak for themselves.

However, among the 95% of maters which settle are those which settle at the steps of the Court. Normally, at that stage parties have spent large sums of monies, have filed all their documentation including affidavits making negative allegations against the other party and, in general terms, all the collateral damage to litigation has taken place.

Ideally, parties settle a matter via ADR early in negotiations and the matter settle out of court.

Further ADR information:

If you have any questions, please contact our Accredited Family Law Specialists:

Carlos Turini email: cturini@elringtons.com.au

or Contact our Family Law team on: 02 6206 1300