Mediation & Going to Court

Most family law matters can be settled without going to Court, which in most cases, should be a last resort. Using an alternative dispute resolution method to resolve your family law matter is generally best for all parties, including any children of the relationship. Alternative dispute resolution can save time and money, which in turn can reduce the stress of a separation or divorce.

There are several dispute resolution methods that may be used for a family law matter. These include mediation, arbitration, family dispute resolution and conciliation conferences. The appropriate method for your matter will depend on the circumstances of your case, including factors such as whether it is a parenting or property matter, and whether there are any concerns about domestic violence.

Mediation

Mediation is typically a confidential, low cost and flexible method of dispute resolution. It involves the parties meeting face to face with an impartial third party who assists them to reach a solution. A mediator does not provide legal advice or determine the outcome of the matter.

Mediation is most effective when parties are willing to negotiate and make genuine attempts to resolve the dispute. It is a good method for parties who hope to preserve their relationship, for example, if they intend to have a co-parenting relationship.

Arbitration

Arbitration involves the appointment of a professional (the arbitrator) who has expertise in a specific area to determine a matter. It is generally limited to financial and property related cases. Arbitration may also be used to focus on a specific issue such as determining the value of a business interest. After each party presents their case and related evidence, the arbitrator makes a binding determination, known as an award.

Family Dispute Resolution

Apart from certain exemptions (for example, in urgent cases or where family violence exists), parties wishing to make an application to the Court to determine parenting matters must attend Family Dispute Resolution and file a family dispute resolution certificate with the application.

Family Dispute Resolution is a form of mediation conducted by an accredited practitioner, to encourage parties to negotiate a resolution outside of the courtroom. If an agreement is reached, a parenting plan can be developed, and consent orders filed with the Court.

Injunctions and interim orders

Sometimes, it may be necessary to apply for an urgent court order in the form of an injunction, to protect a party’s rights before final orders are made. An injunction is a court order that prevents a person from doing something or compels a person to do something. Examples of injunctions include:

• orders concerning the use of funds or a bank account
• orders requiring or preventing the sale or disposal of property
• orders preventing a party from dealing with an asset
• orders regarding the occupation of the family home
• orders preventing the removal of a child from Australia

Interim orders are temporary court orders made to provide a provisional solution to parenting or financial matters, pending a final hearing.

Interim property orders may include a part-property settlement, which is like an ‘advance’ payment on what a party is likely to receive in a final settlement. The funds may be used for whatever purpose the party seeking the interim order chooses, such as buying a car, renting a property, paying legal fees or for daily living expenses. The orders are taken into consideration in the final hearing, meaning that any funds advanced will generally be deducted from the final property settlement.

Interim parenting orders may be made concerning with whom the children of the relationship will reside, the amount of time the children will spend with each parent and other people such as grandparents, and other matters concerning the care, welfare, or development of children.

Going to Court

Family law matters are heard in the Federal Circuit and Family Court of Australia. If an application is filed, the Court will require a number of steps to be completed in an attempt to settle your matter before trial. As noted, for most parenting matters, the parties will be required to attend Family Dispute Resolution and make a genuine attempt to resolve their matter before an application for parenting orders can be made. In property matters, the parties will usually need to attend a conciliation conference with a Registrar of the Court before appearing before a Judge.

If your matter proceeds to trial, it may take several months before a final hearing is conducted.

We focus on settling your family law matter in the most amicable, efficient, and affordable way possible and encourage our clients to explore all available options before proceeding to Court. If Court proceedings are necessary, rest assured that we are skilled advocates with over 50 years of combined family law experience and a thorough working knowledge of family court processes and systems.

If you need assistance, contact us at [email protected] or call 02 6622 5566 for expert legal advice.