Family Law Dispute Resolution

Resolving family disputes without going to court!

Parties involved in a family law disputes are encouraged to attempt to negotiate a solution to parenting arrangements  and property settlements between themselves without resorting to taking their matter to court.  This process is called Family dispute resolution (“FDR”).  FDR, before parties commence court proceedings, may take many forms:

  1. Parties negotiating by themselves;
  2. Parties negotiating with the assistance of a mediator;
  3. Parties negotiating with the assistance of their lawyers and a mediator;
  4. Parties negotiating with the assistance of their lawyers without a mediator (“four-way meeting”);
  5. Parties engaging on collaborative law;
  6. Parties engaging an arbitrator to rule on their dispute.

In all cases, parties should obtain legal advice about their rights, obligations and prospects before they embark on the FDR process.

Is Family Law Dispute Resolution compulsory?

Whilst it is not compulsory for parties to engage in FDR before people commence family law property proceedings in court, it is compulsory to do so for parenting matters before starting court proceedings unless the matter falls under some specific exceptions as, for example, in urgent cases or domestic violence cases. It is also a requirement for those seeking changes to an existing parenting order.

Dispute resolution has many advantages and it’s a better method to resolve family law disputes because it is normally:

  • Cheaper
  • Quicker;
  • More flexible
  • The range of outcomes available to parties in FDR is wider ranging than what a court may do
  • Parties involved in FDR are only limited by their own imagination with regard to the possible outcomes that may be achieved

Two of our solicitors at elringtons’ Lawyers, Carlos Turini, Director and Anya Aidman, Associate, are specialist family lawyers and are also accredited as mediators by the Resolution Institute under the National Mediator Accreditation Standards (NMAS).

Carlos and Anya are experienced litigators and court advocates. They engage in the FDR process at times as mediators and at times advising their clients and representing them in the process. They find the discipline of dispute resolution satisfying as practitioners as they are able to assist their clients to advise them and represent them and to devise together with their clients tactical and strategic considerations during the dispute resolution process.

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

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Care and Protection Proceedings in the ACT – Part 1

By Gemma Sutherland

Introduction to Care and Protection Jurisdiction

The Children’s Court in the Australian Capital Territory deals with matters involving children who may sometimes require protection from their own parents.
The Child and Youth Protection Services (CYPS) is an agency with legislative responsibility under the Children and Young People Act 2008 for the care and protection of children and young people believed to be at risk of harm. If CYPS takes emergency steps in a matter, such as removing children form the care of their parents, the agency must, within a short time, make an application to the Children’s Court for appropriate orders and directions.
The jurisdiction may be described as the “welfare jurisdiction” and is to be distinguished from the “family law jurisdiction” which the Family Court has, under the Family Law Act (1975) (Cth), (a federal piece of legislation) to deal with parents’ disputes about their children.

The process and legislation

When a child is removed from a parent or a care giver, the emergency steps taken by the agency may be to place the child in the care of a family member or into emergency foster care. In the application which the CYPS must file with the Court, it must outline the reasons for removal and what orders they are seeking with respect to the child.

Parents and family members are afforded the opportunity to file their own material with the Court. Parents and family members may agree or disagree with the reasons for removal and to the orders that CYPS seek. The Court is solely focused on making any orders that they deem to be in the child’s best interests and has duty to ensure that a child is not at risk of abuse or neglect.

Initially the Court will hear the emergency action application and has to determine whether interim care and protection orders should be put in place. If it is found that a child is in need of care and protection, an interim order may be made and the child may then be placed under the parental responsibility of the Director General until such time that the matter is finalised.

Although the Children and Young People Act 2008 is primarily concerned with the child’s best interests, elringtons understands the importance of being heard and putting forward your case. A previous client has commented “I really appreciate all the effort put into the case. You have helped me and my family to be able to start to build a relationship. For this I am forever grateful to you”.

If you or a family member find yourselves in a situation where a child has been removed from their parents, please do not hesitate to contact us. At elringtons we have a range of experience in acting for either parent (mother or father), independently for the child and even for grandparents in care and protection proceedings.

For more information please contact Gemma Sutherland:

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

Children’s Wishes: How the view and interests of the child can be determined and heard in Family Law matters

By Anya Aidmananya bw 2 cropped

When it comes to parenting matters, I regularly have client’s come to me and say “will the Court care about what my child thinks?” and “do they get a say in what happens?”.

There are a number of vehicles and processes in the family law litigation and dispute resolution landscape that identify your child’s interests and that let your child’s voice be heard.

A child’s expressed wishes will always be considered by the court. The weight the court will give to those expressed wishes may vary from case to case and the age and maturity of the child. On the other hand, a court will not force a child to express a wish in a family law dispute.

The Independent Children’s Lawyer

Section 68L of the Family Law Act 1975 enables the Court to appoint an Independent Children’s Lawyer. This is a lawyer who acts independently from the other parties to a matter and whose role it is to represent your child and their interests.

Child-Inclusive Conference

The Court can order that the parties attend a Child Inclusive Conference (“CIC”). Generally, but not always, the Court will order a CIC when parenting matters involve older children.

A CIC includes a court appointed officer, parents or other relevant care givers, and the child or children who are the subject of the proceedings.

“Wishes” Report

The Court can order that a ‘wishes report’ be prepared.  A wishes report can in general terms be described as a psycho-social assessment of a child, generally by a psychologist or child specialist.

The report will be based on an interview or interviews and present the child’s views and experiences, as well as observations and analysis of the child’s views and behaviour in the context of the parenting matter at hand.

Family Report

Section 11F of the Family Law Act 1975 enables the Court to order that the parties attend upon a Family Consultant. This Consultant will interview each party, sometimes with the child or children in question, and prepare a report with respect to their observations and findings.

The findings or reports produced through any of the above processes are not binding on the Court but can be relied upon by the Court in reaching any determination.

If you wish to discuss your family law matter, you can contact Anya Aidman or any of our other experienced family law team.

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

Why Should I Get a Parenting Plan?

By Carlos Turini – Accredited Family Law SpecialistCarlos Turini - Accredited Family Law Specialist

Parents involved in a family law dispute about a child are required, pursuant to Part Vii of the Family Law Act, to attempt to resolve the dispute via counselling /mediation. This is a compulsory requirement. Parties are encouraged to enter into an agreement in writing about the future care of their children, a “parenting plan”.

As part of major reforms to the Family Law Act in 2006, a new Division 4[1] was added to Part VII of the Act entitled “Parenting Plans”. A very large stake was placed in “parenting plans” to help implement the intended reforms. An obligation was imposed by law on “advisers” to inform their clients about parenting plans and about where they may get further assistance to negotiate a parenting plan. [2]

The Objectives of Division 4

The objectives of the Division are described as follows:

“The parents of a child are encouraged:

  1. to agree about matters concerning the child;
  2. to take responsibility for their parenting arrangements and for resolving parental conflict;
  3. to use the legal system as a last resort rather than a first resort;
  4. to minimise the possibility of present and future conflict by using or reaching an agreement; and
  5. in reaching their agreement, to regard the best interests of the child as the paramount consideration.” [3]

What a Parenting Plan May Cover

A parenting plan may cover numerous topics including

  1. The parent with whom a child is to live;
  2. the face to face time and telephone contact and other form of communication that a child is to spend with the other parent;
  3. the allocation of parental responsibility for a child;
  4. the process to be used for resolving disputes about the terms or operation of the plan;
  5. any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child;
  6. the child support that a parent will pay the other parent.[4]

Basically, a parenting plan may cover all matters normally addressed in parenting orders made by a Court,[i] whether by consent or otherwise. In order for the Child Support Agency to enforce a Parenting Plan, it must comply with specific requirements for a child support agreement pursuant to Parts 6 and 7 of the Child Support (Assessment) Act 1989.[5]

Formal Requirements of a Parenting Plan

There are some formal requirements for a parenting plan to be valid:

  1. it must be in writing;
  2. it must be signed by the parties; and
  3. dated.[6]

A Parenting Plan is Not Legally Enforceable

Unlike parenting orders made by a court, a parenting plan is not legally enforceable and the parties to the agreement are not legally bound to implement it. The questions posed as the title to this article then becomes quite relevant:

What is the point of entering into a Parenting Plan if it is not enforcable?

While Parenting Plans are not legally enforceable, they are admissible in family law court proceedings as evidence of an agreement that the parties previously reached. Parenting orders made by a court are legally enforceable, parenting plans are not. However, if a party finds himself/herself in circumstances where the other party is not respecting a parenting plan, I do not believe that he/she would necessarily be in a less advantageous position than if there were parenting orders in place.

In my experience, provided that the terms of the parenting plan negotiated by parties appear to be in the best interest of children, enforcing parenting orders is not necessarily less complicated, quicker or have a more certain outcome than perhaps seeking to convert a parenting plan into parenting orders.  In each case, the party needs to make an application to the Court.

I like Parenting Plans

Personally, I like Parenting Plans. As an accredited Family Law Specialist with over 20 years’ experience, I spend the majority of my time negotiating family law disputes including disputes about children. Creating a parenting plan allows the parents to focus on the specific objectives mentioned and the topics above that are relevant to their child/children. Parenting Plans are suitable in the majority of cases and assist the parties to a family law dispute resolve the dispute “outside court”. [7]

The fact that parents are able to reach an agreement by themselves and implement it in the absence of conflict seems ultimately more important than the details of the terms of the agreement.

Avoiding Children being exposed to marital conflict

Counsellors and psychologists who work in a family law disputes warn about the harm that conflict between parents has on children. There is substantial literature on topic available which warns about the risks created to children exposed to their parents’ marital conflict and separation; that unresolved parental conflict impacts children psychological growth and that such children are more likely to be affected into adulthood. At the same time, the same experts advise that the absence of conflict is very beneficial to their children. [8]

Legal Advice

In my view, it is essential that before a client commences negations, he or she should obtain legal advice about the legal rights and obligations of a parent under the Family Law Act. I may also advise my client about strategic and tactical considerations regarding the negotiations that he/she will be embarking. Knowing the your parental rights and responsibilities under the law assists you in negiotiating a sound and sustainable parenting plan which will be of benefit to all affected by the relationship breakdown.

95% of Family Law matters settle out of court, however the statistics include some matters which settle at the end of the journey, right at the steps of the Court, when all the emotional energy and legal costs involved in the litigation have been spent. Negotiating a sound and sustainable parenting plan at the outset of your legal journey may help you avoid the lengthy, acrimonious and expensive, process of commencing court proceedings and driving the dispute all the way to a final hearing.

For more information, contact Carlos Turini

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

[1] Family Law Amendment Act 2006

[2] Section 63DA of the Act

[3] Section 63B of the Act

[4] Section 63C(2) of the Act

[5] See Article 95% of Family Law Matters settle out of Court.

[6] Section 63C(1) of the Act

[7] See Article 95% of Family Law Matters settle out of Court.

[8] More information can be found at : http://www.earlychildhoodaustralia.org.au/our-publications/every-child-magazine/every-child-index/every-child-vol-16-2-2010/childrens-responses-separation-parental-conflict-free-article/

 

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