Australia: Family Law Property Settlements

Last Updated: 14 June 2012

A Move Towards Compulsory Mediation

For many couples and famiies experiencing seperation and divorce, disputes can be resolved far more quickly and cost-effectively by using methods such as mediation and dispute resolution.

The family law system in Australia not only recognises that fact, but actively supports families in achieving a solution before the intervention of the Court. Compulsory family dispute resolution is already a requirement before commencing proceedings in respect of parenting in the Family Courts and this year, we will see the introduction of a program that will help couples and families to resolve their property disputes through mediation as well.

Resolving property disputes through mediation

'The Family Law Settlement Service' will commence in August 2012 and will hopefully see families resolving disputes concerning property more quickly and at a more affordable cost.

As a joint initiative of the Law Society of NSW, Family Court of Australia, Federal Magistrates Court of Australia and the NSW Bar Association, the Service provides eligible parties with access to lawyers who have family law mediation experience and can help the parties to reach property settlement out of Court.

As President of the Law Society, Justin Dowd commented:-

'Using Alternative Dispute Resolution methods, such as mediation, is a good way to solve family-related legal issues. This initiative will help facilitate better outcomes for families, by minimising conflict, preserving relationships and keeping costs down for them through mediation'.

Courts will identify disputes suitable for mediation and invite the parties involved to partake in the program. If the parties agree to undertake mediation they will be required to sign a consent form with Orders made referring them to the Law Society of NSW. The Law Society of NSW and the NSW Bar Association will then provide experienced family law mediators from their existing panels of legal practitioners to assist the parties in reaching an harmonious property settlement.

'The courts want to explore all avenues of possible resolution, particularly without the emotional strain and costs associated with having a fully defended trial', said Family Court Justice Garry Watts.

Cases involving children's issues and parenting orders

Compulsory family dispute resolution is a requirement before commencing parenting proceedings in the Family Courts.

The Family Law Act 1975 (Cth) requires a person who intends to seek an order in relation to a child to obtain a certificate from a registered family dispute resolution practitioner before filing any such application with the Court. That is, parties are required to at least attempt to resolve their dispute concerning the children with the help of an experienced practitioner, before involving the Court.

The certificate issued by the registered family dispute resolution practitioner should confirm one of the following:

  1. That the parties attended family dispute resolution with the practitioner and all attendees made a genuine effort to resolve the issue or issues in dispute.
  2. That the party or parties attended family dispute resolution with the practitioner but did not make a genuine effort to resolve the issue or issues in dispute;
  3. That the party or parties did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings but that person's failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend.
  4. That the party or parties did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings because the practitioner considered that it would not be appropriate to conduct the proposed family dispute resolution having regard to matters mentioned in sub-regulation 25(2). See below for more information.
  5. That the party or parties began attending family dispute resolution with the practitioner and the other party or parties to the proceedings, but the practitioner considered that it would not be appropriate to continue the family dispute resolution as a result of the matters mentioned in sub-regulation 25(2).

When is a parenting matter not suitable for family dispute resolution?

Under sub-regulation 25(2) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), a registered family dispute resolution practitioner may consider a matter to be inappropriate for family dispute resolution.

This decision will depend upon whether both parties involved in the dispute are able to negotiate freely, or if one of the parties' ability to negotiate is affected by any of the following matters:

  • A history of family violence among the parties;
  • the likely safety of the parties;
  • the equality of bargaining power among the parties;
  • the risk that a child may suffer abuse; or
  • the emotional, psychological and physical health of the parties.

If one of these circumstances is present, the family dispute practitioner will refer the matter back to the Court for determination.

Are there any exceptions to providing a certificate?

A person may be exempted from providing a certificate under the following circumstances:

  1. if the matter is urgent;
  2. if the Court is satisfied there are reasonable grounds to believe that:
    1. there has been child abuse and/or family violence by a party;
    2. there is a risk of family violence by a party; and/or
    3. there is a risk of child abuse if there were to be a delay in applying to the Court.
  1. where a party is unable to participate effectively in family dispute resolution (for example, as a result of incapacity or physical remoteness from a family dispute resolution practitioner);
  2. if the application relates to an alleged breach of an existing order that was made in the previous 12 months and there are reasonable grounds to believe that the person who is alleged to have breached the order has acted in a manner that shows serious disregard for his or her obligations under the order.

The legal definitions of 'family violence' and 'child abuse' are technical and comprehensive. It is strongly recommended that expert legal advice be obtained before claiming an exemption under these grounds, so as to present the appropriate evidence before the Court.

What does compulsory mediation and dispute resolution mean for you?

On the whole, any system or program that can help separating couples to avoid the financial and emotional burden of lengthy litigation will be beneficial.

The implementation of 'The Family Law Settlement Service' provides a promising avenue to assist many couples in reaching a resolution concerning their property dispute, quickly and cost-effectively. However, as we can see from the above information, cases involving parenting matters may not always be suitable for mediation and Court intervention can still be required to address the issues at hand.

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.

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