On September 1, 2021 the newly merged Federal Circuit and Family Court of Australia (FCFCOA) began operating, and with it, came a raft of new changes as to how family law cases will be managed in the new system. One of the notable changes was an increased focus on all parties involved in parenting and property matters to undertake dispute resolution (where safe to do so), with the aim of resolving matters swiftly and fairly without having to proceed to trial unnecessarily. Here, we detail what this process looks like and what it means for you.
Dispute resolution options in the new Court system
In the new Court system, there will be several options for parties to undertake dispute resolution, both internally (via Court appointed experts) and externally (via private practitioners).
In order for the Court to determine the best course of action, parties involved in a property or parenting matter will need to provide the Court with information about:
- their finances either by filing a Financial Statement in property matters, or by providing evidence as to their means (if a Financial Statement is not required).
- Allegations of family violence, and exposure to harm or risk of harm.
The Court will use this information to determine whether the matter should be referred to either internal or external dispute resolution.
The new dispute resolution options will include:
INTERNAL
- Conciliation Conferences.
- Judicial Settlement Conferences.
- A Family Dispute Resolution Conference pursuant to section 13C(1)(b) Family Law Act (Cth) 1975 with a Family Dispute Resolution Practitioner who is often a Judicial Registrar and, where appropriate, a Court Child Expert in their capacity as a Family Counsellor.
- Mediation.
EXTERNAL
The external dispute resolution options include:
- Private mediation.
- Private, legal aid facilitated or community-based family dispute resolution.
- Arbitration, with the consent of the parties.
You can learn more about what’s involved in the mediation and arbitration process in our section entitled: “resolving matters.”
Will dispute resolution be offered in cases where there is family violence?
It is common for matters that come before the Court to have complex risk and family violence issues. To address this, the Court has put in place initiatives and training programs that allow Court staff to deal with these risks in the right way.
Where dispute resolution is required, the Court will consider the safety of the parties and make an assessment based on the level of risk involved.
If the Court is satisfied that, despite the risk of family violence, that dispute resolution is appropriate, an order for internal dispute resolution can be made, or an order for external dispute resolution can be made with the consent of both parties. The external dispute resolution process would most likely be with a family dispute resolution practitioner or with a mediator chosen by the parties involved.
In circumstances where external dispute resolution is not considered appropriate (i.e., where there may be a higher level of risk of family violence) then the parties will engage in dispute resolution in an internal setting, with a Registrar and/or a Court Child Expert present.
If you would like more information about the dispute resolution process, or if you require legal advice about your family law matter, our Sydney family lawyers are here to help. Get in touch with us today on 02 9262 4003 or submit an online enquiry.
Are children involved in the dispute resolution processes?
While the Court might make an order for a Child Impact Report to be prepared – which could include interviewing the children and depending on their ages and the appropriateness of this as determined by the Court Children’s Services – children are not involved in the internal and court-based dispute resolution process.
For those who choose to engage in external dispute resolution and wish to have their children involved, they can do so.
Changes to the external dispute resolution process
The changes will not impact the way private dispute resolution practitioners choose to conduct their conferences or mediations, and these remain confidential.
The only change required is that a Certificate of Dispute Resolution will need to be issued and filed with the Court. This certificate requires the dispute resolution practitioner to assess whether a party has made a genuine attempt to resolve the matter, whether the rules have been complied with, and enquire as to whether costs notices have been given to the parties by their legal representatives.
Additionally, if one party does not show up to the dispute resolution process, the Court will be notified and there may be costs incurred as a penalty.
Confidentiality and privacy in dispute resolution
All matters discussed in dispute resolution remain confidential.
While the parties involved will need to identify Court documents and additional information that they may wish to put before the practitioner conducting the dispute resolution, as well as prepare a confidential case outline, the contents of these documents will not be brought to the Court’s attention, unless they had previously been filed with the Court.
The FDR Practitioner, Mediator or Court officer will also be required to complete a Certificate of Dispute Resolution to show they have followed all the required steps, but the Court does not expect the practitioner to breach confidentiality or provide information that they would not otherwise provide in completing the certificate.
What if matters do not get resolved after dispute resolution?
For matters that do not get resolved even after completing the dispute resolution process, both parties will then need to participate in a Compliance and Readiness Hearing, which occurs approximately 6 months after the matter is filed. In this hearing, both parties will need to prepare a Genuine Steps Certificate outlining the attempts they made to settle the dispute. The Court will then assess the information provided to determine whether the matter can be resolved before trial, or if it needs to proceed to a trial.
In circumstances where the matter is not resolved because one party fails to attend the dispute resolution or comply with any orders made by the Court, it will be reported back to the Court and there may be cost consequences for the non-attending or non-complying party.
If you would like more detailed advice on this process and the steps involved, our family lawyers are here to help. Give us a call today on 02 9262 4003 or submit an online enquiry.
Need further advice about the dispute resolution process?
Understanding the family law system can often be tricky and confusing. Our Sydney family lawyers are well versed in how the Federal Circuit and Family Court of Australia will operate and are here to help.
If you have a new family law matter you would like to discuss, or concerns about an existing matter and how it will be impacted by the changes, give us a call on 02 9262 4003 or submit an online enquiry here.
The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.
Pamela is a member of Ivy Law Group’s prominent Family Law division. She specialises in parenting, property and divorce matters.
Pamela is a strong advocate for her clients and gains great satisfaction in helping them navigate through a difficult time in their lives and achieving an outcome that resolves their dispute to the highest standard.
