Family Law Library

Search our articles to learn your rights

Mathews Family Law have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


Popular Articles

You’ve Tried Everything – Time for Family Court?

You’ve Tried Everything – Is it Time for Family Court?

While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough.  Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table.  But it’s almost always best to avoid court, at least in the beginning.  We recommend trying a number of alternatives, before going to Family Court:

Work it out on your own

Sit down and talk to each other.  This can save both of you time and money.   And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.

Family Dispute Resolution 

Many couples start with family dispute resolution.   Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process.   This is generally used when children are involved.

Mediation 

Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions.  The mediator is interested in resolving the problem in the best way possible for everyone involved.  The mediator does not judge or make a final decision but will help you come to your own resolution.

Collaborative Divorce 

Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved.  Together all sides work together to help both of you come up with a solution that works for everyone.  Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.

When is it time to throw in the towel and go to Family Court?

Sometimes though, Family Court may really be the right way to go.  Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.

Imbalance of Power

If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves.  While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.

Your Partner has an Aggressive Lawyer

Even the most well-meaning of people can fall under the spell of a tough lawyer.   If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.

Your Partner does not Communicate

Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side.  You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want  or won’t agree to anything,  If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.

Vanessa Mathews and Kuppy Nambiar are accredited specialists Melbourne family lawyers Melbourne divorce lawyers who have the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Mathews Family Law, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone 9804 7991, enquiries@mflaw.com.au

Mathews Family Law: http://www.mathewsfamilylaw.com.au

Family Court of Australia: http://www.familycourt.gov.au

Federal Circuit Court of Australia: http://federalcircuitcourt.gov.au

Who can go to Family Dispute Resolution?

When attending family dispute resolution (FDR) to resolve custody issues, you may think you need to bring another person for support. Or you may be wondering if your child is part of the process. There are certain rules regarding who may attend FDR that you should be aware of.

First, lets start with who must be there. Both parents must attend, as well as the professional conducting the FDR. If either parent fails to attend, FDR cannot take place.

So who else can go? Well, as long as neither party objects, a support person or family member may also attend. Your lawyer might be permitted to attend as well, although this must be discussed with the Family Relationship Centre Staff in advance. Each Family Relationship Centre is independently operated, so the rules and feelings towards having your lawyer present may vary from centre to centre.

What about your children? Your children will not actually attend the FDR, although they may still be involved in the process. If the parents consent, a family counsellor may talk to the child while the parties are attending FDR.

I have questions about divorce but I’m not ready to talk to a lawyer, what should I do?

For many people, meeting with a family lawyer is terrifying. Some may feel that it signifies that the marriage is truly over, others are just scared of the process, and others may still be holding out hope for reconciliation. There are many reasons why being proactive about seeking advice might be hard. The good news is, there is a great resource available to Australians who are looking for information or advice about family issues: The Family Relationship Advice Line.

While you should not depend on the Advice Line to give you legal advice, it can be a great resource for general inquiries. Advice Line staff are equipped to provide information about:

  • services to help maintain relationships
  • the family law system and family separation
  • how to develop workable post-separation parenting agreements
  • the impact of conflict on children
  • Family Relationship Centres and other dispute resolution services, including telephone services
  • other services which will help with family relationship and separation issues

Another advantage to using the Advice Line for general or initial inquiries is that your call will remain anonymous. You can feel free to pick up the phone and ask your question without having to provide any personal information.

The phone number is 1800 050 321 and is open for calls from 8 am and 8 pm Monday through Friday and from 10 am until 4 pm on Saturday.

While this is not an appropriate resource to have your legal questions, such as “will I have to pay spousal support?” answered, it is a great resource to ask general questions about the divorce process and other family issues.

Family Dispute Resolution: The Basics

There are many methods to solve family law issues; couples can chose to have their disputes litigated in the court room, they can reach an agreement through mediation, or they can use other dispute resolution methods. In Australia, before you can apply to the court seeking any child related order, you must first attempt family dispute resolution. If you are able to agree on a parenting plan without involvement from the courts, such as through mediation, or you can otherwise reach a settlement, then you will not have to attend this mandatory dispute resolution. However, if you plan on using the courts to help you determine any child related issue, you must first attend family dispute resolution.

Australian law requires couples seeking the court’s help with regard to child related issues to use family dispute resolution because often through this process couples are able to reach an agreement. There is a strong preference in our country for couples to solve their family law issues without resorting to litigation.

A registered family dispute resolution practitioner who has received the necessary training will conduct the dispute resolution. She will provide information regarding the dispute resolution procedure and can also give you information about Legal Aid and contact information for local lawyers. This individual cannot, however, administer legal advice. Her role is merely to act as a neutral third party in helping the couples solve the dispute.

Once the parties have attended the dispute resolution, they dispute resolution practitioner will issue a certificate which can be filed with the court. The certificate will state if the parties attended the resolution, or why it was not appropriate to attempt dispute resolution, and must be signed by the dispute resolution practitioner. Generally, parties must provide this certificate to the court, the only exceptions are cases where there is a history of family violence, the application to the court is urgent, or there are other extreme circumstances.

After the court has received the certificate acknowledging your attempt at family dispute resolution, it will consider your application for any child related matters.

Family Dispute Resolution: The Details

Australia now requires anyone seeking a court order concerning children to first file a dispute resolution certificate with the court acknowledging that they have engaged in some type of dispute resolution. This is only necessary if the parties plan to invite the courts to make parenting determinations and other child related issues. Should you and your former partner be able to reach a settlement without seeking the court’s help, there is no requirement to attend dispute resolution.

The reason for this requirement is that Australia has a strong preference for families to reach amicable agreements without resorting to litigation. Generally, the outcome is better when parties are able to reach an agreement independent of the court’s involvement. Dispute resolution encourages early and full disclosure of relevant information, and allows parties to engage in a process that not only avoids legal action but also minimises cost.

What is a Dispute Resolution Certificate? And do I need one?

The certificate is simply a piece of paper that confirms that you and your former partner have attempted some type of family mediation with a registered family dispute resolution practitioner. It will state one of the following:

  • The other party did not attend family dispute resolution;
  • The parties attended and made a genuine effort to resolve the dispute;
  • The parties attended but one or both of them did not make a genuine effort to resolve the dispute; or
  • The practitioner decided that the case was not appropriate for family dispute resolution

You will need a certificate before you can apply to the court to litigate any child related procedures unless:

  • The application is for consent orders
  • There is a history of risk or family violence and/or child abuse;
  • The application is urgent;
  • It is impractical to attend family dispute resolution;
  • The application alleges a contravention of a court order made within  the past 12 months;
  • An application for a parenting order has been previously filed with the court; or
  • Agreement has been reached.

If the above scenarios do not apply to your case, and you fail to file a certificate prior to seeking the court’s help in a child related proceeding, you could be forced to pay additional costs and/or be ordered to attend the required family dispute resolution.

Once provide to the court, the certificate becomes part of the file and is considered an official court document.

What is a Registered Family Dispute Practitioner?

Your dispute resolution certificate must be signed by a registered family dispute resolution provider in order to be valid. This person may also been known as a “family counsellor” or “dispute resolution practitioner.” An individual or organisation must be qualified through meeting certain standards of training, experience and suitability for inclusion on the Family Dispute Resolution Register.

A “family consultant” does not meet the necessary qualifications, however can still assist you through the process. These individuals are licensed psychologists and social workers who are contracted by the Family Court and assist and advise people involved in the proceedings, assist and advise the court, and also help the parties resolve disputes.

If you are looking for a registered family dispute practitioner you may access the register online at: http://fdregister.familyrelationships.gov.au/Search.aspx.

Bear in mind that not every legal practitioner or counsellor is qualified to act as a registered family dispute resolution practitioner. You may consult the above website or simply as your lawyer for a recommended family counsellor should you need dispute resolution services.

Prior to commencing the dispute resolution, the registered practitioner or counsellor must assess whether dispute resolution is appropriate in your particular case. The assessment will consider many factors, such as the history of family violence, safety of the parties, equality of bargaining power amongst the parties, emotional/psychological/physical health of the parties, and other relevant factors. Should the practitioner decide that dispute resolution is no appropriate in your situation, they will issue a certificate that says as much.

Do I need a lawyer?

It is very important to note that registered family dispute practitioners are not permitted to give any type of legal advice to the parties. These individuals are to be neutral and should only act to help the parties resolve their issues. Even if you chose a private practitioner who is in fact an lawyer, she may not administer legal advice to either party. These dispute resolution practitioners may discuss the legal process and the logistics of subsequent legal action, and they may provide you with contact information for Legal Aid or other lawyers, however they may not administer legal advice, which begs the question: Do I need an lawyer?

There is no “right” answer to this question. Each family’s circumstances are unique to their situation, so there is no universal answer to the question of whether you should employ an lawyer prior to attending dispute resolution. However, we recommend to most people that they obtain legal advice prior to the dispute resolution session. An lawyer can explain the process, the implications of the parenting decisions you make, and advise you with regard to your particular situation.

Additionally, the law allows parties to seek legal advice and attempt negotiations through lawyers before you dispute resolution session. You may address and settle all child related issues without having to attend dispute resolution – this is only a requirement if you plan to involve the courts.

What can I expect at dispute resolution? 

Dispute resolution can take several forms. If you hire a private practitioner to conduct your family dispute resolution, it may take place at a law firm, or other corporate location. However, if hiring an individual who is a private practitioner is beyond your financial reach, you can get access to dispute resolution services at Family Resource Centres or other community based organisations.

Family Relationship Centres (FRCs) are government sanctioned dispute resolution forums that encourage parents to focus on the needs of the children and reach a workable parenting arrangement. The ultimate goal of the FRC is the same as with other forms of dispute resolution – to reach an agreement without having to go to court. While FRC staff can’t provide legal advice they are trained to deal with relevant issues such as family violence and child abuse, and they can provide you with information about private practice lawyers as well as Legal Aid as well and other community legal centres.

Should you choose the FRC route, your experience may vary depending on the location you select. Each FRC is independently owned and operated and thus the intake process as well as the dispute resolution model can be different at each centre. However, the one aspect of all FRCs that is consistent at all locations is that your first three hours of services are free.

Once you have selected your family dispute resolution forum, you will be asked to sign an agreement confirming your understanding of the process. There will be a joint session, with opportunities to take a “time-out” and have one on one time with the practitioner. If your issues are not able to be resolved in your initial meeting, then you will have to schedule a subsequent session to make another attempt to resolve the issues.

Everything said during the dispute resolution process is strictly confidential, and is not admissible in open court or other proceedings, unless it relates to child abuse or the parties have consented.

Other Avenues of Dispute Resolution

Arbitration is a type of dispute resolution in which a trained professional evaluates the evidence and makes an independent determination regarding the dispute. This process is appealing to some because the parties are able to control the process by selecting the arbitrator as well as the method and timing of arbitration. More often than not, an arbitration hearing can occur significantly sooner than the courts would reach your case, and the process tends to be more private. A list of qualified arbitrators may be found at htttp://www. familylawsection.org.au.

Collaborative law is another option for dispute resolution, and allows for parties and lawyers to meet in four-way meetings. This process permits the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Exceptions to Compulsory Family Dispute Resolution

In 2006 it became mandatory for all couples to attend family dispute resolution prior to filing an application with the court to determine custody. One of the aims of this legislation was to encourage parents to reach an agreement about parenting on their own terms, without the interference of the courts. After family dispute resolution is attempted, the practitioner involved in the process issues one of four types of certificates:

  1. A person did not attend family dispute resolution with another party because of the other party’s refusal or failure to do so;
  2. A person did not attend family dispute resolution because the practitioner considered that it would not be appropriate to conduct such resolution (having regard to matters prescribed by the regulations);
  3. A person did attend family dispute resolution and all attendees made a genuine effort to resolve the issue or issues;
  4. A person did attend family dispute resolution but that the person or another party did not make a genuine effort tot resolve the issue or issues;

The court will consider these certificates prior to making a ruling in the case, and can also consider the certificates when assessing whether to order costs be paid by a party.

Does that mean that you absolutely have to attend family dispute resolution and get one of these certificates before you can file a custody action?

Not exactly.

While the legislators voiced a clear preference for settling child-related matters through family dispute resolution, they also recognized six classes of cases in which family dispute resolution should not be required.

1. Application for Consent Order Pending

If parties are applying for a consent order, then they have already reached an agreement on how to handle child-related issues. Therefore, ordering the parties to attend family dispute resolution prior to filing an application for the consent order would be futile.

2. Violence and Abuse

Where the court finds reasonable grounds exist that demonstrate that there has been abuse or family violence, or that a risk of such exists, no compulsory family dispute resolution is required. The court will not force parties to attempt to achieve a resolution to their child-related issues if there is any history or threat of violence.

3. Contravention of Previous Order

A party can make an application to the court regarding “particular” child related issue, without attending dispute resolution, if there is already an order in place addressing said issue. For instance, if there is already an order in place setting forth a custodial schedule for the child, and one party is not abiding by the order, the complying party may apply directly to the court to seek enforcement of the order. If there is already an order in place, there is no need to utilize dispute resolution services to try and reach an agreement.

4. Application is Urgent

Sometimes a parent will have to make an urgent application to the court about a child related issue. An example of this would be if a parent intended to relocate and take the child with them, in a situation like that the parties would need to have the issue addressed by the judge as soon as possible, spending time at family dispute resolution would simply slow the process down.

5. Incapacity

If a party lacks the capacity, physically or otherwise to attend family dispute resolution, the court will not enforce their attendance. For instance, if a party is unable to participate effectively because they live in another country, an application regarding a child related issue could be made directly to the court even if no family dispute resolution has taken place. The rationale for this exception is that compelling attendance would be largely inconvenient; a party could make sacrifices to travel and attend dispute resolution only to not reach an agreement and have to subsequently travel again for litigation.

6. Other Circumstances

The final exception category is a catchall. If there is another reason set forth in the regulations that would allow parties to bypass family dispute resolution, that reason will suffice and allow parties to bypass compulsory dispute resolution.

The bottom line is, unless your situation qualifies for one of these enumerated exceptions, you should be prepared to attend family dispute resolution prior to making an application to the court to determine custody or other child related issues.

Can what I say during family dispute resolution be used against me in court?

The short answer is no – what is discussed in family dispute resolution may not be used against you in court.

First, what is said during this process is protected by rules regarding confidentiality. Statements that you offer to a family dispute resolution practitioner, or to your lawyer in front of a family dispute resolution practitioner are protected. Such a practitioner can only disclose statements made during a previous family dispute resolution session in a limited number of circumstances. For instance, if the practitioner reasonably believes disclosure is necessary to protect a child from harm, or to report or prevent damage to property they may disclose statements indicating such.

While rules of confidentiality are implicated, you should also know statements made in a family dispute resolution are also inadmissible in court proceedings. While there are a few narrow exceptions to this rule, you should be aware that statements made during a dispute resolution session are generally not admissible in court.

What is arbitration?

Arbitration is a form of dispute resolution where parties (or their lawyers) will present arguments to a chosen arbitrator who will make a determination to resolve the dispute. This type of dispute resolution is available to parties who are disputing financial matters, such as spousal support, property settlement, and financial agreements. Arbitration is not, however, an appropriate venue to settle disputes related to children.

Arbitration is almost like a hybrid of court proceedings and mediation. It is similar to mediation in that it is an out of court settlement method, however it differs from mediation in that in mediation the parties work to reach their own agreement. There are some advantages to choosing arbitration as a means to settle a financial dispute. For instance, this process allows the parties to retain much more control and it is more flexible than going to court. You get to choose the arbitrator, who is the ultimate decision maker, and it is also quicker and less expensive than the court process.

Arbitration can be especially appealing to those who have disputes about both children and financial matters. For these parties, they can address parenting issues through mandatory family dispute resolution and subsequently arbitrate their financial dispute without delay.

Should I meet with an lawyer before agreeing to mediation, arbitration, or other dispute resolution?

Yes. We encourage you to always seek legal advice prior to agreeing to dispute resolution. While dispute resolution is all about reaching an out-of-court agreement, you will still want someone to explain to you the dispute resolution process as well as what to expect if you have to litigate your issues.

An lawyer can explain your rights, review the facts of you case, and help you determine if dispute resolution is appropriate for your case. While dispute resolution is mandatory in some cases, in others it may not be the best course of action and an lawyer can advise you on such.

Finally, you will want to have an lawyer present at your dispute resolution. Having representation at a mediation or arbitration helps tremendously as your lawyer can advocate for you and advise you on the best way to proceed and whether you should agree to a proposed settlement.

How to Avoid an Unsuccessful Mediation

Generally speaking, reaching a settlement is best the way to address problems associated with the breakdown of a marriage. When parties can agree on the terms of their separation through mediation or other means, the resulting agreement usually suits their needs better than if a judicial order.

When you have to litigate issues such as property division and custody in court, you rely on the judge to determine a fair solution, which can sometimes leave one or both parties feeling as though they lost, so to speak.

While settlement is highly encouraged, there are certain obstacles that can make reaching a fair settlement impossible. Awareness and acknowledgement of these hurdles is the first step in preventing them from ruining your attempts at negotiating a fair settlement.

1 – Consider Emotional Barriers

It is far too easy to let our emotions consume us when it comes to matters affecting the heart. The breakdown of a relationship can set you on an emotional roller coaster of highs and lows. You may experience feelings of guilt, hatred, anger, heartbreak, or any number of emotions. Emotions are the most common thing that frustrate settlement attempts. Here are a few tips you can use to make sure your emotional crisis won’t ruin your chance at reaching an amicable settlement.

Don’t rush into mediation. Often when parties realize that the marriage has failed they become eager to finalize the separation, move on, and start anew. Some people push their lawyers to get things done quickly because they are anxious to move on. This is not always the best course of action. Even if you think you are acting clearly and rationally, chances are your wounds are still fresh and your emotions are clouding your vision. If you show up at a mediation feeling angry, resentful, guilty, rejected, desolate, mistrustful, sad, nostalgic or any other number of emotions it can completely ruin your chances of reaching a settlement. Be sure to give your heart some time to heal before attempting mediation.

Seeking professional help in the way of counselling or therapy can also help. You may think that you don’t need any help, and that counselling isn’t for you. Perhaps you think counselling is only for couples trying to reconcile. There are many reasons you might rationalize not seeking help during this time. The bottom line is that counselling can help. These professionals can help you deal with your emotions, discuss how to help your children, and even help you make budgetary decisions as a newly single person. Often, people who do seek professional help obtain better legal results as well as emotional results.

2 – Recognise and Avoid “Stuck Spots”

Another common reason why people are unable to reach a settlement is because parties sometimes reach an impasse on a specific issue and are unable or unwilling to compromise. Often these stuck spots are not actually irreconcilable differences, but for whatever reason the parties cannot seem to move past them. The best way to avoid ruining a settlement this way is to be willing to compromise.

Approach your settlement with an open mind. Enter mediation prepared to make concessions and compromise. If you reach a stuck spot and your negotiations fail because you can’t agree on something relatively petty (like who gets the master bedroom furniture), then you are going to be forced to head to litigation. Litigation will take longer, cost more money, and you will be relying on a judge to make decisions for you.

Also as you approach settlement negotiations remember that you will not win every battle. You may think you should get the marital home, primary custody, child support, alimony, possession of the vehicles, and all the money in savings, but you simply will not win every battle. Be prepared to stand your ground on the important stuff but understand that you will not get everything you ask for.

3 – Identify any Imbalance of Power

Typically marriages do not end amicably, and more often than not, the reason for the breakdown of the marriage is complicated. Maybe someone cheated, or lied about assets, or you can’t agree on child rearing issues. The breakdown of a marriage can be contentious, and depending on the circumstances it can result in an imbalance of power.

If the imbalance of power is so great in your case, it is not an appropriate time to attempt mediation. When the imbalance of power is irreconcilable, the mediator may find it impossible to reason with the parties. This imbalance may disappear with the passage of time, but if not, the case may not be suited for mediation.

4 –Avoid Playing War Games

You clean out the bank account. Your spouse then takes your name off of the joint credit card. You respond by letting the power bill lapse. She then responds by not letting you see the children. It may start off innocent enough but war games frequently rear their ugly head when it comes to divorce proceedings. Otherwise rational people get so consumed by their emotions that they act in a totally irrational manner.

There is only one way to work around this obstacle. Call a truce. These malicious games accomplish nothing. If one or both parties enter mediation furious over these games, nothing will be accomplished.

Before you attempt settlement negotiations, familiarize yourself with common impediments and work hard to remove them from your situation. Often this is easier said than done, but ultimately you will be much happier with a fairly negotiated settlement that you both agree to than having a judge decide how to settle your issues.