MFL

Categories
Mediation Mediation and Family Dispute Resolution (FDR)

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.

Categories
Mediation Mediation and Family Dispute Resolution (FDR)

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: 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 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.

Categories
Mediation Mediation and Family Dispute Resolution (FDR)

Mediation and Family Dispute Resolution

Vlog Transcript

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists, and today we’ll be discussing mediation.

Many couples facing the end of their marriage feel confused about how to resolve the many issues that come up. Well-meaning friends and relatives might recommend running to an aggressive lawyer who can help you battle out in court, but I want to use this video to tell you about different ways of solving your problems that can help everyone to feel that they were treated fairly and with respect.

You and your spouse have the ability to choose how you will go about reaching an agreement. Despite what you may have heard from sensational articles in the media or even through friends, most family disagreements in Australia end with a settlement. This means that most couples do not go to court to work out child custody issues, property division, or maintenance. They sit down together, sometimes with the help of professionals, and work through the problem.

Mediation is an alternative approach to resolving disagreements between couples. In Australia, it’s frequently used for figuring out property issues, and it’s also used for parenting disputes. Rather than going to court and have a judge determine how best to solve your problems, mediation allows you to control the process and the outcome.

So how does mediation work? A third neutral and objective person serves as a mediator whose role is to facilitate communication between you and your spouse to help you reach an agreement that you’re both comfortable with. The mediator helps you figure out what your interests are, what your actual needs are, and what is fair to everyone.

There are many benefits to mediation. One is that you’re involved in the process and the final decision. If you don’t like the way the process is going, you can say so and even leave the mediation. You’re in control. No judge makes a final ruling for you that you might not like. You have the right to accept or reject any agreement. Another benefit of mediation is that it gives you a lot of flexibility.

Together with the mediator and your partner, you set up times for meetings. This means you don’t have to miss work or find babysitters, or be controlled by court dates. The settings for mediation is also much more comfortable: usually in the mediator’s office and definitely not in a courtroom. Mediation is usually much shorter than going to court, limiting the time to weeks or just a few months.

When it comes to parenting issues, family dispute resolution, or FDR, is a very good option. This is a type of mediation that’s required by the courts when parents can’t come to an agreement on their own. These mediators are trained in the area of family disputes, and they usually have a background in law, social work, or psychology. They help couples figure out what’s best for their children. If you and your partner can work out a parenting plan on your own, that’s great. If you can’t, and you need to go to court to get a judge to decide, you first have to attend FDR and show the court you’ve both a good effort to resolve your problems.

I often recommend to clients to get legal advice when you’re in mediation, and I would recommend that you do have a lawyer. The lawyer’s role is to make sure you know your legal rights and obligations, and to help you understand the legal consequences of the decisions that you make in the mediation.

Sometimes lawyers actually attend the mediation sessions if both sides agree. It’s helpful to have a lawyer in mediation because sometimes there is a power imbalance between you and your spouse where one is stronger, or louder, or takes advantage of the other. Having a lawyer there can help balance the sides. But even if you don’t have a lawyer with you, you have the right to call your lawyer, or anyone else, to ask questions. Mediation agreements reached without each of you understanding your legal rights can result in failed negotiations or even broken agreements.

If you have more questions about mediation or family dispute resolution, or want to learn more about them, you can take a look at our other videos and at our website, or feel free to call me. I’m Vanessa Mathews at Mathews Family Law & Mediation Specialists.

Categories
Mediation Mediation and Family Dispute Resolution (FDR)

Family Law and Mediation – Is Mediation Appropriate For Me?

Mediation (also known as ‘Family Dispute Resolution’) is a powerful tool for resolving parenting child custody and property settlement asset division disputes following separation and divorce, with a greater sense of satisfaction and ownership by the parties of the resulting agreement.

You may be feeling uncertain about whether or not FDR / mediation is ‘appropriate’ for you.

The answer to this question may or may not be obvious, for example:

  1. FDR / mediation will be obviously not appropriate if a party refuses an invitation to attend an initial intake meeting with a FDRP / mediator –all FDR / mediations commence with an initial intake session, including risk assessment. The decision to participate in FDR / mediation must be voluntary and cannot be ‘imposed’.
  2.  FDR / mediation may be appropriate even if a party expresses concern about a power imbalance and their capacity to participate – alternative modes of FDR / mediation will be considered at the initial intake meeting, including the options of: joint sessions, shuttle mediation, remote attendance via skype / telephone / email. The availability of alternative modes enhances access to FDR / mediation.
  3. FDR / mediation will be appropriate if both parties consent to attend – a choice of mode of attendance ensures that parties wishing for a non-litigious approach have the opportunity to utilize FDR / mediation notwithstanding concern about doing so.

For more than a decade Vanessa Mathews, accredited family law specialist and accredited FDRP and Mediator, has been providing FDR / mediation services in conjunction with her work as a family lawyer in Melbourne’s eastern suburbs. In this time Vanessa has provided FDR / mediation to hundreds of clients. Whilst there will always be the need for the Family Court to resolve the most complex parenting child custody and property settlement asset division matters, Vanessa continues to be in awe of, and humbled by, clients who choose to take responsibility for their parenting child custody and property settlement asset division and spousal maintenance issues via FDR / mediation – rather than have a Family Court Judge do this for them.

Vanessa is available to assist you to achieve a mediated agreement to:

1. Resolve your parenting issues including:

  1. Interim issues:
    i. Child custody following separation, eg shared care
    ii. Single issue disputes, eg choice of school
  2. Final issues:
    i. Child custody when one parent wishes to relocate with the children
    ii. Ongoing parenting child custody arrangements
  3. Documentation of agreements
    i. Parenting Plan
    ii. Family Court Consent Orders

2. Negotiate property settlement and spousal maintenance issues including:

  1. Interim issues:
    i. The use or sale of the home following separation
    ii. Child support
    iii. Spousal maintenance
    iv. Disclosure and valuation of assets
  2. Final issues
    i. Property settlement asset division
    ii. Child support
    iii. Spousal maintenance
    iv. Superannuation splitting
  3. Finalization of the agreement:
    i. Family Court Consent Orders
    ii. Binding Financial Agreements

Please contact Mathews Family Law & Mediation Specialists on 1300 635 529 to discuss your FDR / mediation needs.

Mathews Family Law & Mediation Specialists offer fixed fees for FDR / Mediation.

In 2019:

  • Vanessa Mathews and Mathews Family Law & Mediation Specialists is rated by ‘Three Best Rated’ as one of the three best divorce lawyers in Melbourne.
  • Vanessa Mathews is recognised  by Doyle’s Guide to the Legal Professional as a ‘Recommended Family Lawyer’ and ‘Recommended Family Law Mediator’ in Melbourne.
  • Mathews Family Law & Mediation Specialists won the Global Law Experts Awards for ‘Best Family Law Firm Australia’ and ‘Best Family Law Mediator Australia’ awards.
  • Mathews Family Law & Mediation Specialists is family law firm in the eastern suburbs of Melbourne – Level 2, 599 Malvern Road, Toorak.
Categories
Mediation Mediation and Family Dispute Resolution (FDR)

Family Law Alternatives to Dispute Resolution

The family courts in Australia recognize the limits of an adversarial system, in which sides come to a judge, armed with aggressive lawyers, to let someone else determine their future. Rather than encouraging people – many of whom were married to each other for years, raised children together and made difficult life-changing decisions together – to discuss the issues with each other when there is a problem, it encourages them to do battle against one another, make the other person suffer, and take as much as they can. There is no balance between the carrot and the stick – there is only a stick, no carrot.

Family law in Australia does, however, offer alternatives to the traditional court approach. Many couples, after first trying to resolve their dispute on their own, now turn to mediation. Mediation generally takes place between the husband and wife or de facto partners, sometimes with their lawyers at their sides (if both sides agree) and is led by a trained, neutral mediator. Mediators may be lawyers themselves, but also come from backgrounds in social work and family therapy. The mediator helps the sides define their interests and what is important to them, manages the discussion between the sides and helps them come to a resolution.

The mediator’s responsibility is to assist the sides in resolving the problem in the best way possible for everyone. This means looking at the whole picture – the children, the ability of the sides to continue working together in the best interests of the children, ensuring that everyone can stand on their feet economically – and not just at the individual desires or demands of one particular side. It’s not an easy task for the mediator and it’s even more difficult to bring the sides to this larger understanding. The mediator does not serve as a judge, making a final ruling. The final agreement must come voluntarily from the two parties.

In certain family disputes in Australia, couples, both married and de facto, are required to attend Family Dispute Mediation. Trained practitioners in the field of family disputes, with professional backgrounds in the fields of law, social work and psychology work with a separating couple to help them through the process. These practitioners will advise the couple on best practices for the good of the children. Family Dispute Mediation is required before parents apply for parenting orders from an Australian court. Parents attending this type of mediation receive a certificate which must be submitted to the court before parenting orders will be given. There are exceptions to this requirement, however, such as urgency, domestic abuse or mental illness.

Vanessa Mathews is a family law specialist and mediator and an accredited family dispute resolution practitioner. Mathews Family law also provides the full range of dispute resolution options, including lawyer-led negotiations and arbitration.

Categories
Mediation Mediation and Family Dispute Resolution (FDR)

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.