Family Dispute Resolution (FDR)
For family law matters, parties should try to engage in FDR to discuss their issues and see if an agreement can be reached prior to filing an application to the Court unless there are circumstances of urgency. FDR is a special type of mediation for helping separating families to come to their own agreements and can be used for both parenting and financial matters. It can also be used when there are family law disputes with other family members such as grandparents who wish to spend time with their grandchildren. FDR uses a neutral and accredited FDR Practitioner who can issue what is known as an FDR Certificate. There are a variety of low-cost government FDR options as well as numerous private FDR providers that can be used.
For parenting matters, the FDR Practitioner will encourage the parties to focus on the best interests of the children and can assist the parties to document the agreement reached regarding parenting arrangements into a Parenting Plan. Parties are required to try FDR and obtain an FDR Certificate prior to filing an application for parenting orders unless the matter meets the grounds for an exemption such as matters involving urgency, family violence or child abuse, a person being unable to participate in FDR or contravention applications. It will be up to the Court whether to approve an exemption from when a parenting application is filed without an FDR Certificate.
For financial matters, the pre-action procedures involve meeting your duty of disclosure obligations, setting out your position to the other party and attempting dispute resolution options such as negotiations, FDR, or mediation before commencing Court proceedings. There can be consequences for filing an application for financial orders without complying with pre-action procedures unless there are reasonable circumstances for the failure to do so.
Private Mediation
Mediation is a type of dispute resolution that aims to resolve disputes between parties before court involvement or during Court proceedings. It utilises an independent, neutral third party as a mediator, who is also often an expert in the areas in dispute. The mediator’s primary role is to help the parties understand the issues in dispute and guide them to come to a resolution of those issues between themselves by agreement. Their job is not to decide the issue or give advice. Generally, the parties share the costs of the mediator and attend the mediation with their legal representatives so that either a half day or full day of negotiations can occur in the one place with a view to achieving a negotiated settlement outcome.
Arbitration
Arbitration is a process in which parties (and their lawyers if they have them) present arguments and evidence to an independent arbitrator who makes a determination to resolve the dispute. The issues that can be arbitrated are limited to financial matters such as property settlement, spousal maintenance, superannuation, and financial agreements. The parties have control over the process and the choice of arbitrator as the process of arbitration can only be undertaken by mutual agreement of both parties. An arbitrator must apply the principles set out in the legislation as the Court would. A decision by an arbitrator is binding and can only be altered by a Family Court in limited circumstances. A decision by an arbitrator can also be registered with a Court and enforced as if it were Court Orders.
Legal Advice and Assistance
At Prime Law, we are strongly focused on trying to assist clients in finalising their legal outcomes in the most cost-effective and time efficient manner so we utilise various forms of dispute resolution, where appropriate, to assist clients in achieving a negotiated settlement without protracted and expensive litigation.