Mediate, Conciliate, Collaborate, or Arbitrate – the strong message for would be litigants in the merged Family Court is “Get out & Sort it Out!”

1 September 2021 marked the greatest reform to Family Law since 1975, with the merger of the Federal Circuit and the Family Court of Australia to form the Federal Circuit and Family Court of Australia (‘FCFCOA’ or ‘the Court’), The merger brings a whole new structure, rules and procedures which greatly impact upon case management within the Court system, designed with the overarching purpose of reducing the costs and delay of Family Law litigation, mostly through referral to alternate dispute resolution services.

Streeterlaw’s Accredited Specialist in Family Law, Simone Green explains the emphasis on compulsory dispute resolution in the new Court structure and what that means for separated couples in dispute.

With the new Court’s goal to discharge family law proceedings within 12 months, it is essential to remove as many cases from the system as possible which can be settled by the parties themselves with the assistance of mediators or referred for private arbitration.

Compulsory Mediation before and during Court proceedings:

Pre-court mediation

Family dispute resolution (also known as ‘FDR’ or ‘mediation’) is nothing new in Family Law. A certificate from a Family Dispute Resolution Practitioner (known as a Section 60I Certificate) is required before filing an Application seeking parenting Orders (with certain exceptions such as family violence, child abuse or urgency).

What is new however, is the requirement to file a Genuine Steps Certificate with any new Court Application noting an attempt at Dispute Resolution prior to filing, including those only seeking financial orders.

Dispute Resolution Events

Under the Court’s new case management pathway, parties will be ordered to attend further dispute resolution events (even if previous mediation failed) before the case can progress through the Court system (with exceptions).

The Registrar may also order that the parties fund their own private dispute resolution such as:

• Mediation;
• Legal-Aid mediation or community-based mediation at no or low cost; or
• Arbitration

If the Registrar determines the case is unsuitable for private outsourcing, they will order any of the following Court-based dispute resolution events to occur within 5 months of the Application date:

• Conciliation Conference (settlement conference with a Registrar of the Court);
• A Judicial Settlement Conference; and/or
• a Family Dispute Resolution Conference with a Judicial Registrar and perhaps a Family Counsellor in parenting cases.

There are strict rules and procedures around the exchange of all relevant information and documents to the dispute when attending a dispute resolution event and making a genuine attempt to settle. Costs orders and other penalties may be made in circumstances where parties have not complied with their disclosure obligations.

If agreement is reached, orders can be made by consent discharging the proceedings.

If no agreement is reached the Court will make appropriate orders and directions to progress the case towards a final hearing. That alone is no guarantee that a further dispute resolution event will not be ordered, however. If a case cannot be heard on the date listed, the judge may instead direct the parties back to alternate dispute resolution before allocating a further hearing date.

Never has the Court placed such emphasis on alternate dispute resolution at all stages of family law proceedings. The clear message is do not file an Application in the Court without first having made every genuine effort to settle your dispute or you will be redirected back towards alternate dispute resolution until you do.

Call and speak with one of our experienced team of Specialist Family Lawyers today on 02 8197 0105 and let us guide you towards resolving your Family Law Dispute.