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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Who Gets the Dog? Pets in Family Law Matters

We love our pets and often they truly are part of the family. So when it comes to the end of a relationship or separation of a family, it can be very important to take a pet into consideration.

In most cases separating parties are able to resolve this issue amicably, as it may be understood from the start which person owns, or is the main caregiver for a particular pet. For others however, a disagreement may arise as to whom certain pets will live with, and even whether the other party can visit to spend time with the pets.

Unfortunately, sometimes the motivation for one party keeping a pet as part of the family law process may be for the wrong reasons. People can feel very close and form long term attachments to animals and one party might try to keep the pet to upset the other party or use it as a weapon. Threats to euthanise the pet to eliminate the issue entirely is particularly upsetting.

Aside from being unfair to the animal, situations such as these are unlikely to end well for either party. Another issue that is sometimes faced, is in cases involving family violence. Often, if the victim of family violence leaves, they may not be able to take their pet in to temporary accommodation or a refuge.[1] This also poses the problem of leaving the pet in an unsafe and hostile environment.

Family law is generally broken into two sections, property and parenting. Determining the ownership of a pet after separation falls under property. The Family Law Act (1975) does not make specific provision for pets, rather they fall under the category of “chattels” – or simply, property. Most items in the property pool are allocated a value, but how can you place a value on a family pet? If the pet is used for racing or breeding purposes and provides an income of some kind, it may be allocated a financial value. However, as a general rule, a value is not placed on a pet when considering property division in family law.

While pets are considered property, the Court does acknowledge the comforting nature of pets, with Judge Harman in the case of Downey v Beale stating that “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised”.

Determining factors considered by the Court when deciding who gets the Pet

Accommodation – Can the pet live at the accommodation, for example rental accommodation?

Who was the main caregiver? – Who registered the dog, who fed it and took it for walks, who took it to the vet for vaccinations etc.?

Was the pet given to one of the parties as a gift?

The court will use the above information when considering which party should keep the pet.

In many cases involving children, the court will decide to give the pet to one parent. However, orders are sometimes made for the pet to accompany the child or children in moving between parents’ houses. In other situations, such as in the case of Poulos v Poulos, the Court made orders allowing the mother to keep the pet dog, even after the child was ordered to live with the father. The court considered factors such as the mother’s stress and her long term bond with the dog. Additionally, the calculation of spousal maintenance took into consideration pet friendly accommodation for the mother.

If you have a dispute that includes a pet, orders can take into consideration future costs and maintenance of the pet. This can include the cost of vaccinations, food and veterinary costs.

Pre-Nuptial Agreements

One preventive measure which can be taken to safeguard against any future dispute, is to enter into a prior agreement. A “prenuptial agreement”, also known as a binding financial agreement, can include pets in the property pool. If this is done, it is important to specify the exact details of the pet, or specify how you and your partner plan to purchase a pet and who will keep it should the relationship end. This option could avoid potentially lengthy legal proceedings after separation.

Family law disputes can take their toll on all members of the family, especially when involving a beloved family pet. As acknowledged by Judge Harman, “dogs are not our whole lives, but they make our lives whole.” At elringtons we understand that pets are more than just property and they provide immense happiness and comfort, especially when it is needed most.

Please do not hesitate to contact our Family Law Team if we can help you with a family law matter involving a pet.

For more information or to make an appointment with a Family Law Solicitor contact

Carlos Turini:

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


[1] Useful links if you need to rehome your pet urgently:
http://fosterdogs.org/tess/do-you-need-to-rehome-your-dog/
http://rspca-act.org.au/
https://www.petrescue.com.au/
http://www.tccs.act.gov.au/city-living/pets/dogs/lost-dogs/impounded_dogs
http://www.qcc.nsw.gov.au/Services/Animals/Animals-for-sale/Animals-for-sale

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

 

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