If you’re separating, the Federal Circuit and Family Court of Australia (the Court) requires you to participate in family dispute resolution (as long as it’s safe to do so) before you make any applications. If you’re having a dispute about children and parenting, or your division of property or spousal maintenance, then you may need help coming to an agreement. And the Court won’t assist until you can demonstrate that you’ve taken genuine steps to resolve the matter before starting a proceeding in the Court.
The goal behind the preference for dispute resolution is to protect the time and focus of the Court and the interests of all the parties. Family dispute resolution is typically the best option for separating couples, their children and the overburdened court system.
So what do you need to know about family dispute resolution?
What is family dispute resolution?
Family dispute resolution is a practical, affordable and collaborative way for you to resolve disputes with your ex-partner. It can happen at any time in the separation process and it allows you to work out solutions to your own problems during a time when things often feel out of your hands, parties appreciate having a bit of control. It also helps parties avoid time-consuming and expensive court cases, which can add more stress and trauma to an already-difficult situation.
Family dispute resolution is a broad term that can encompass a number of different methods. These can include mediation, conciliation and/or arbitration.
Let’s take a closer look at each of these below.
Mediation is a process where an impartial, trained professional helps parties work through their issue and develop their own resolutions. It tends to be highly user-friendly and because it’s technically ‘off-the-record’ people often feel more comfortable saying what they need to in a confidential and safe environment.
The mediation process gives you the time and space to work through any disputes together with your ex-partner. The cordial nature of proceedings also better leaves open the possibility of having an amicable relationship in the future.
When you’ve tried mediation and still can’t reach an agreement, it may be time for a voluntary conciliation. During this process, an independent ‘conciliator’ supports you and your ex-partner to work through financial issues that have resulted from separation or divorce.
Often conciliators are chosen because they have expertise in a particular subject matter that you’re dealing with – for example property dissolution. No matter their specialty, their goal will be to help you reach a resolution.
Conciliation conferences are also held within the court system and these will be conducted by a judicial registrar. The judicial registrar is an independent court official who doesn’t (and can’t!) give legal advice but can support parties to understand legal principles. A conciliation conference is only held if ordered by the Court. If it is, then attendance is compulsory. If a resolution is reached through a conciliation conference, it can be formalised by the judicial registrar. This will turn the agreement into a binding court order.
Arbitration is another process that can be used for resolving financial and property disputes arising from separation. You can use this to manage issues around spousal maintenance, financial agreements made before/during marriage, superannuation agreements, and execution and compliance with court orders. But parenting and custody issues can’t be handled by arbitration. During the arbitration process, you will present your argument and evidence to an independent arbitrator, as will your ex partner.
The arbitrator is typically a senior legal practitioner with training in arbitration. The arbitrator then reviews all the evidence and makes a legally binding decision about your issue (known as an ‘award’) which can only be put aside by going to Court.
The entire process is confidential and private. It’s also voluntary. However, once you’ve begun the arbitration process, you can’t simply withdraw. This is different from mediation, where you can withdraw from the process if you feel that it’s not working out.
When choosing the right FDR method for your situation, consider:
Each of these factors will help you decide which form of family dispute resolution is best for your specific situation and the outcomes you’re looking for.
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