Court proceedings aren’t the sole avenue for resolving family law disputes. Several alternative methods can be more cost-effective, efficient, and swifter. Furthermore, adhering to pre-action procedures as set out by Rule 4.01 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 is obligatory before commencing proceedings. Your genuine efforts in these procedures are documented in the Genuine Steps Certificate, which you must submit to the Court when initiating proceedings.

Here is a summary of various types of alternative dispute resolution:

  1. Negotiation

Negotiation stands for a foundational method where parties attempt to achieve mutual agreements. It can be a face-to-face discussion or through written correspondence managed by solicitors.

Engaging in negotiation promotes communication, potentially averting the emotional and financial strain of extensive court hearings. By allowing parties to express their perspectives, it often yields more satisfying and holistic solutions.

  1. Mediation

What is it?

Mediation involves a neutral third party, a mediator, who guides the disputing parties towards an agreement. Parties can choose the mediation format – face-to-face, remote, or shuttle (particularly utilised in family violence cases).

Process

The mediator lays down the groundwork by emphasising their impartiality, confidentiality rules, and the mediation steps. Parties then state their goals, allowing the mediator to pinpoint common grounds and set a resolution agenda. A successful mediation concludes with the mediator assisting in drafting the agreement, although they cannot enforce decisions.

  1. Conciliation

This is often a court assisted mediation session where a Judicial Registrar aids parties in explore their settlement options, engaging negotiation and reaching an agreement on financial issues. The Conciliation Conference promotes compromise, allowing parties to retain control over the outcome rather than leaving it to a judge’s decision. Generally lasting 2-5 hours, discussions remain confidential to foster open communication.

If an agreement is achieved, it can be formulated into enforceable Court Orders. If no agreement is reached, the Judicial Registrar outlines the next procedural steps, which might involve further financial disclosure, referrals, or having the matter set down for a final hearing if the parties are ready to proceed to a trial.

  1. Family Dispute Resolution (FDR)

FDR aids parties in resolving separation and divorce disputes with the help of a neutral FDR practitioner (FDRP). They play a role akin to mediators, without the authority to make or impose decisions. FDR services can be accessed via Family Relationship Centres or through a judicial registrar appointed by the Court. Agreements reached in court-assisted FDR can be turned into binding court orders by consent.

Family Relationship Centres which also provide information, referral and individual sessions free of charge. You can find more information on their website: https://www.familyrelationships.gov.au/find-local-help

  1. Arbitration

This method entails parties presenting their case to an Arbitrator, who then decides on the dispute’s resolution. The arbitrator, typically an experienced legal practitioner, is often mutually chosen by the parties. Depending on the nature of the case, Arbitrators usually are required to obtain accreditation from the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM).

  1. Collaborative Practice

Collaborative law is an emerging approach that emphasise joint problem-solving by both parties undergoing separation. Instead of heading to court, they team up with a mix of legal and non-legal experts to navigate the situation. This method places a premium on understanding everyone’s needs and working towards a solution where all feel satisfied, rather than facing a win-or-lose outcome. It may be beneficial for couples with children and those who they wish to preserve the family relationship, as it lays the groundwork for a friendly future relationship for their children’s well-being.

 

How does it function?

  1. Deciding to Collaborate

A crucial aspect of collaborative law is the willingness of both parties to participate wholeheartedly. Therefore, both parties need to commit to this collaborative approach. It’s cemented when both, alongside their lawyers, sign an agreement which spells out the rules of this method.

  1. Discussion and Dialogue

Here, parties and their respective lawyers come together, holding discussions to pinpoint a resolution that resonates with everyone. This stage might involve face-to-face meetings, virtual conferences, or other modes of conversation.

  1. Finalising the Agreement

Once a consensus is achieved, lawyers craft a legal document encapsulating the agreed terms. This document can then be presented to the court for a stamp of approval.

To sum it up, collaborative separation is a refreshing deviation from the usual courtroom battles, emphasising unity over discord. It presents several advantages like reduced expenses, heightened autonomy, minimized stress, and overall improved results. With the presence of neutral professionals like collaborative coaches, the process can balance out power disparities and support everyone involved.

 

Exceptions to Pre-Action Procedures

Not all cases require adherence to pre-action procedures. Exemptions include instances of child abuse or family violence, urgency, past family law applications in the last 12 months, applications solely for divorce, child support appeals, or proceedings linked to bankruptcy under sections 35 or 35B of the Bankruptcy Act 1966.

There are three brochures published by the federal family court to help people understand their obligations in family law matters:

Before you file – pre-action procedure for parenting cases (prescribed brochure) | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Marriage, families and separation (prescribed brochure) | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Duty of disclosure | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Genesis Edge Law Group offer strong expertise in all aspect of Alternative Dispute Resolution. Call us on us on 1300 559 888 and speak to our Accredited Arbitrator, Accredited Mediator and Accredited Family Dispute Resolution Practitioner and our trained Collaborative Lawyer today if wish to resolve a family dispute.

If you’re seeking expert guidance regarding how to resolve a family or marriage dispute, please call us on 1300 559 888. We offer a complimentary consultation to discuss how we can assist you to go through this tough and emotional phase of your life. Let us help you stay out of the Court.