It is time to start thinking differently about how to resolve family law disputes.
The Court’s new case management pathway, and particularly the events which are conducted by judicial registrars in court lists and in dispute resolution, is designed to focus parties on potential areas of agreement, and move towards a final resolution of all issues as safely as possible, and without the impact, stress and expense of protracted family law litigation.
Parties and practitioners can expect judicial registrars to be consistently looking for ways to narrow the dispute and unlock opportunities for meaningful negotiations. It can require much courage to embrace these opportunities, but when parties have a say in their outcomes and agree to the ways to reduce conflict and create certainty, particularly in parenting matters, the likelihood of lasting agreement increases.
The Federal Circuit and Family Court of Australia Act 2021 contains a clear statement of the Court’s overarching purpose ‘to facilitate the just resolution of disputes a) according to law and b) as quickly, inexpensively and efficiently as possible’.
To assist with fulfilling this purpose, and where it is safe to do so, the Court will offer parties opportunities to take ownership of the resolution of their dispute and work towards an agreed outcome. Parties will be encouraged to think about what is needed to come to an agreement and the Court will assist in moving the matter to a meaningful and productive dispute resolution conference.
What is needed in each matter will differ and may include:
- referral to legal service providers including FASS or legal aid so parties are fully informed of the available processes and options
- expert input – such as a child impact report, family report, medical or other assessment or involvement of a court child expert in the conference
- specific information relevant to the matter – such as disclosure of documents to accurately identify assets or resources, superannuation information or valuations
- documents and information to assist with risk assessment – such as information from other agencies including police and child protection authorities, and
- consideration of the best format for, and structure of, the conference in order to address safety and risk concerns, or language and other impediments to meaningful negotiation.
When parties come to the Court they will be required to give enough information to enable the Court to determine whether the parties (collectively or individually) have the means to fund a private dispute resolution process, whether they are eligible for legal aid or whether a court-based dispute resolution conference with a judicial registrar is the best option. While there are various types of dispute resolution processes available with Legal Aid, community-based organisations and private mediators, there are two main types of dispute resolution conferences at the Court:
- conciliation conferences, and
- family dispute resolution conferences.
Conciliation conferences can be ordered matters involving financial issues only. Family dispute resolution conferences can be ordered in matters involving only parenting issues or both parenting and financial issues. These conferences will differ in length, structure and preparation requirements depending on the needs of the matter. The conferences are confidential which means, with the exception of disclosures of risk of harm, anything that is said, or any offers or settlement made, cannot be raised in court. Conducted by judicial registrars, and potentially also a court child expert where parenting issues are to be discussed, the conferences are a forum for exploring the legal and associated issues of concern with a view to reaching agreement. A willingness to listen and a preparedness to make compromises is essential for a successful conference: the registrar will not impose an outcome on the parties but they will assist parties to capture agreements in consent orders and bring the litigation to an end.
In each case, parties must make a genuine effort to reach agreement at the conference. The judicial registrars convening the conference must, at the conclusion, provide a Certificate of Dispute Resolution confirming whether or not the parties attended and/or made a genuine effort to reach agreement. There can be costs consequences if it is clear that a party, or their legal representative, is not taking steps that support the Courts’ overarching purpose.
The Court can, in appropriate matters, also accommodate Judicial Settlement Conferences with a judge or senior judicial registrar. In addition, where the parties to property settlement proceedings consent, the Court can also make orders for the parties to participate in private arbitration.
Not all matters are appropriate for dispute resolution including those where there are significant allegations of risk of harm including as a result of domestic and family violence, drug and alcohol abuse and/or coercive control. In all cases, very careful consideration will be given to whether or not a dispute resolution conference is appropriate.
Many parties to court proceedings are able to reach agreement about some parts of their disputes. It is important to focus on the areas of agreement and to remember that most parties to court proceedings do not require a trial or a judgment. In many cases, early assistance with a particularly challenging aspect of the dispute – such as interim arrangements for children, understanding the impact of parental conflict on children and young people, financial disclosure or valuation issues – can unlock the opportunity to reach agreement.
Parties will be given ongoing support and opportunities to engage in dispute resolution where it is safe to so, and if cases cannot be resolved, they will be listed for a trial before a Judge much earlier than previously experienced.
For those cases that do need to proceed to litigation, the new court provides a modern, transparent and more efficient system of justice which is aimed at finalising disputes as safely, fairly and quickly as possible.