The Family Law Act requires parties to make genuine efforts to resolve their disputes before an application can be made to the court. Apart from certain exemptions (for example in urgent cases or where there has been family violence or child abuse), parties wishing to make an application to the court for parenting or financial orders must sign a genuine steps certificate stating that they have complied with the pre-action procedures set out in Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 which includes the following:
Each party must make a genuine effort to resolve the dispute through dispute resolution by:
- giving a copy of the pre-action procedures to the other party;
- making inquiries about the dispute resolution services available to assist with resolving the dispute;
- inviting the other party to participate in dispute resolution with an agreed person or organisation, where it is safe to do so;
- cooperating with the other party to agree on an appropriate dispute resolution service;
- participating in dispute resolution with the other party; and
- providing written notice to the other party of their intention to start proceedings in the Court. If you are given a written notice, you must respond within the timeframe indicated in the notice.
In financial proceedings, each party should begin exchanging their financial information.
In parenting proceedings, each party should begin exchanging copies of documents relevant to an issue in dispute with the other party.
There are various ways to resolve your family law matter without resorting to court proceedings. Alternative dispute resolution processes such as mediation, collaborative law and arbitration can avoid the need to become involved in expensive and time-consuming litigation, providing a viable alternative to resolve your family law matter.
Mediation involves a neutral person (the mediator) meeting with you and your ex-partner to assist you to explore and reach workable solutions to your family law issues. Generally, the meeting is confidential, and the mediator facilitates the negotiations but does not provide legal advice, nor does he or she determine the dispute. You are able to have your lawyer attend mediation with you to provide advice and assistance in making decisions and documenting any agreement. Mediation is effective when the parties are willing to negotiate in good faith and make genuine attempts to resolve their issues. Some of the benefits of mediation are:
- The location, date and time is agreed between the parties and the mediator, rather than set by a court, which usually achieves a quicker result
- Mediation is less formal than court proceedings and can therefore be less daunting. The parties are not confined by court formalities, enabling them to explore different ways to resolve their issues
- Mediation can assist in preserving the parties’ relationship which is helpful when they need to have ongoing communication, for example, with matters concerning children
- If mediation does not resolve a dispute entirely, it can still be beneficial in narrowing the issues between the parties, allowing a more focused approach to identify and resolve the actual problems
Our principal, Vanessa Leishman is trained in collaborative law – a non-adversarial method used to resolve legal disputes. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes.
Collaborative law can be a cost-effective, dignified approach to resolving your family law matter. Like mediation, the conciliatory method is particularly suited to family law as it can help preserve the parties’ relationship.
Collaborative law involves the parties and their lawyers signing a participation agreement, which requires them to conduct confidential and transparent negotiations to resolve a matter without recourse to litigation. The parties must agree not to threaten litigation and the lawyers must not advise their clients to start court proceedings.
The parties steer their own matter and identify issues to be resolved by attending a series of meetings accompanied by their legal representatives and any other advisers agreed upon such as an accountant or valuer. A specific agenda of issues to be discussed is agreed prior to each meeting. This can significantly minimise cost and delay, and of course, the stress and anxiety of being involved in acrimonious negotiations or court proceedings.
Family Dispute Resolution
A family dispute resolution conference is a form of mediation used to encourage parties to negotiate a resolution outside of the courtroom. It is conducted by an accredited dispute resolution practitioner.
The role of the practitioner is to assist the parties to cooperate in a positive manner and to work through the real issues. The parties attending should make genuine efforts to resolve the issues in dispute and explore options for workable parenting arrangements that will be in the best interests of their children.
The practitioner should ensure that each party understands the process and the terms of any agreement reached. Generally, unless the practitioner has a legal obligation to disclose certain information, communications exchanged during the mediation are confidential.
If an agreement is reached, a parenting plan can be developed, or consent orders filed with the court.
If an agreement is unable to be reached, or a party refuses to participate, the family dispute resolution practitioner will issue a s60I certificate which is required before a party can commence parenting proceedings unless the matter is urgent or there has been family violence or child abuse.
We are skilled negotiators and trained in alternative dispute processes. We understand the importance of resolving family law disputes in non-adversarial ways and we aim to assist you to obtain an amicable resolution wherever possible. We assist clients through alternative dispute resolution including private mediation or collaborative negotiation. If this does not resolve your matter, we can explore other options or represent you throughout the entire court process.