The long delays and under-resourcing in the Family Court have been well documented recently, so this is not breaking news for anyone with a vested interest in Australian family law. Ongoing delays in court proceedings continue to place significant strain on parties and their families who are left to endure the setbacks, often at times when they are already dealing with extremely difficult personal circumstances.
There is no doubt that the proper delivery of, and access to, justice is being threatened by the dire situation that the Family Court is currently facing.
When the Turnbull government appointed Chief Judge William Alstergren as the next Federal Circuit Court head in late 2017, he vowed to tackle the backlog of cases in the court system. At the time, the pilot program was aimed at clearing a backlog of 18,000 cases. Judge Alstergren also aimed to have litigants appear before a judge within five months of initiating a proceeding; a drastic reduction in the time that parties previously had to wait to advance their matters.
The program has, objectively, been largely successful. Late last year, in one of his first moves as chief judge, Judge Alstergren brought in 300 of the court's most protracted disputes in Melbourne, referring many to mediation. It was reported that with the help of 140 barristers who agreed to work pro bono, over 70 per cent of the disputes were resolved. The success of this 'blitz' saw it rolled out in Sydney, with other target cities now on the horizon.
There is no doubt that in looking to further decrease the backlog of cases in the Family Court, a large number of cases will be referred to Family Mediation (as well as other forms of alternate dispute resolution, such as Family Arbitration) in the foreseeable future.
What is Mediation?
Mediation is a process where the parties involved in a dispute are assisted by a mediator (a neutral and impartial third party), who will help them try to resolve the matter. A mediator typically listens to the parties and helps to identify the disputed issues, the needs of each side, any relevant goals and the options available to help resolve each issue.
The aim of mediation is to assist the parties in reaching an equitable agreement, if an agreement is indeed appropriate in the specific circumstances. It is important to note that a mediator is not an advisor, and is not permitted to make a determination.
When can Mediation be used in Family Law?
Generally speaking, parties in Family Law matters can participate in mediation to resolve a dispute at any time. Under the Family Law legislation, parties with disputes relating to parenting matters must attempt mediation before the matter can be brought before the Family Court.
With this said, the court can waive this requirement under certain circumstances, for example:
- If the case involves family violence; or
- If one of the parties cannot be located or is unable to attend; or
- If the matter is urgent.
Generally speaking, Family Mediation can help the parties reach agreements on:
- Property disputes;
- Parenting disputes;
- Spousal maintenance;
- Interim property matters;
- Child support issues;
- Contravention/breaches of existing orders;
- Issues relating to the implementation of orders; and
- Disagreements over issues relating to parental responsibility (e.g. passports and overseas travel involving children, school enrolment, and medical issues relating to a particular child). This can include instances when parties already have court orders in place.
How can Coleman Greig help you?
Coleman Greig provides a professional and accessible Family Law Mediation service specifically catering for family law matters. Our Family Law Mediators are all fully accredited through the Australian Institute of Family Law Arbitrators and Mediators as well as being Accredited Specialists in Family Law through the Law Society of New South Wales.
By also practising as lawyers exclusively in the area of family law, each of our Family Mediators is highly skilled and experienced in family law, and is therefore well equipped to mediate in this area of law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.