Counselling & Mediation
What is the Process?
To assist parties to reach an agreement the Family Law Act, and Rules of Court impose on the parties a responsibility to explore alternatives to litigation before such proceedings are commenced. Those requirements include:-
- Provision to the parties of a copy of the Court's Central Practice Direction which outlines the core principles applicable to family law proceedings
- That each party make a genuine effort to resolve the dispute before filing an application to start proceedings, and only if it is safe to do so:-
- Give a copy of the pre-action proceedings to the other party.
- Make enquiries about the Family Dispute Resolution Services available.
- Invite the other party to participate in Family Dispute Resolution.
- Give the other party written notice of an intention to start proceedings.
There are different requirements for children and property matters:
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Matters Involving Children |
Matters Involving Property |
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Before an application can be filed in Court in relation to children's issues (except for limited exceptions such as family violence or abuse) a mediation certificate (Section 60I) must be issued by a family dispute resolution practitioner. Mediation can be undertaken in various formats and may include your solicitor. Usually it is best to obtain legal advice before committing to any agreement that might result from mediation. There are a number of avenues available to obtain the Section 60I certificate including the following:-
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Prior to providing the other party with an intention to start proceedings, you must invite the other party to participate in dispute resolution, and make a genuine effort to resolve the dispute. Dispute resolution is usually in the form of mediation, facilitated by a mediator who is also a lawyer, and can provide guidance as to the Court process in relation to property matters. Depending upon the mediation model utilised by the mediator, feedback on each party's position can also be provided. The Court requires the parties to comply with pre-action procedures before considering filing an application about property issues, only if it is safe to do so. |
Wait times for mediation can vary significantly between different organisations. Mostly, private mediators will have the shortest wait time.
So that you are not disadvantaged, it is of the utmost importance that you obtain independent legal advice before entering into mediation in relation to property issues
If Agreement is reached:
If one, or other, of the parties has felt the need to instruct a lawyer, the agreement is generally finalised by way of a Court Order. If there is a standalone children's matter, then that can be finalised by way of a Parenting Order.
A Court Order may be made by agreement, or after a hearing in front of a Judge.
What if I Need to go to Court?
In children's matters, if proceedings are commenced in Court the matter will eventually be referred for private mediation or for a family dispute resolution conference with a judicial registrar and a court child expert.
In property matters, after all necessary documents have been filed in Court, the matter will be referred for further mediation, either with a private mediator or for a conciliation conference with a Registrar of the Court (depending upon the resources of the parties and the amount in dispute).
The Lawyer's Role:
When you see a solicitor in relation to these issues, one of the matters discussed will be the question of mediation, and in particular whether you may require a mediation certificate. The solicitor will also advise as to other dispute resolution methods, including corresponding directly with the other party, or the other party's solicitor. It is not uncommon for more than one mediation, often dealing with the issues of children and property in a segregated fashion.
Throughout, both the solicitor and the Court will be very mindful of the significant benefits of a negotiated settlement. Your solicitor must take appropriate steps to attempt to negotiate a settlement through an appropriate mediation process, and avoid litigation if at all possible.
Throughout, both the solicitor and the Court will be very mindful of the significant benefits of a negotiated settlement. Your solicitor must take appropriate steps to attempt to negotiate a settlement through an appropriate mediation process, and avoid litigation if at all possible.
Our team at Mark Brown & Associates are more than willing to help. Give our friendly staff a call on 02 9602 5033 to schedule an appointment with a solicitor.