It is no secret that there are extensive delays and huge backlogs in the Family Court system. Litigants can feel the result of such backlog when considering the 2+ year wait periods that parties may have to endure before their matter is heard by a Judge for a Final Hearing.
Because of these delays, parties are encouraged to consider alternative forms of dispute resolution, such as negotiations, mediations and arbitration, to enable finality.
Negotiations between parties are valuable and it is, in fact, the Court’s expectation that parties negotiate prior to filing an Application. However, negotiations may only be beneficial in circumstances where both parties are willing to ‘come to the table’ in a reasonable manner.
Dispute resolution methods, both in and out of Court, are multifaceted and include, but is not limited to, the following pathways:
1.1.Option 1 - Mediation
- Mediation is a process whereby both parties are assisted by an independent third party (the Mediator) to help resolve the issues in dispute. The Mediator does not have the power to make binding determinations and serves simply to facilitate the discussion between the parties.
- During a mediation, the parties, their lawyers and the Mediator sit down together (virtually or face to face) and discuss each of the issues with the hopes of reaching a settlement. Each party has the opportunity to speak and share their perspective. The idea is that both parties approach the event with an open mind, realistic expectations, and a willingness to negotiate.
- For a Mediation to be most fruitful, an agreed list of assets and liabilities should be prepared and exchanged between the parties beforehand. If there are any discrepancies in the values allotted to the assets or liabilities, such as the value of real property, valuations should be undertaken beforehand.
- While any agreement reached during a Mediation is not in itself binding, the agreement can be drafted into Consent Orders and filed with the Court. Once filed and the Orders are made by the Court, the agreement then becomes binding.
- Mediations can range in price, depending on the selected Mediator. A Mediation can usually occur within 4 weeks of selecting a Mediator, dependent upon the party’s schedules.
- The usual process forward would be for one party to propose a panel of three (3) Mediators for the other to select from.
- If a Mediation is successful and Consent Orders are filed with the Court, the matter can be finalised. If the parties are unable to reach a resolution at Mediation, the path forward may involve the below options.
1.2. Option 2 - Conciliation Conference
- This path requires a party to file an Initiating Application in the Federal Circuit and Family Court of Australia, and ultimately the matter would then be set down for a Conciliation Conference.
- A Conciliation Conference is similar to a Mediation; however it is conducted by a Senior Judicial Registrar of the Court rather than a Mediator. If an agreement is reached, the Registrar can on the day make binding Orders on the parties.
- Like a Mediation, a Conciliation Conference is a good opportunity for both parties and their lawyers to sit down together.
- A Senior Judicial Registrar does not have the power to make determinations. The role of the Senior Judicial Registrar is simply to explore the issues at hand, to facilitate discussion and to assist the parties in reaching a resolution.
- Like a Mediation, for a Conciliation Conference to be most fruitful, an agreed list of assets and liabilities should be prepared and exchanged between the parties beforehand.
- If a Conciliation Conference is successful and the Senior Judicial Registrar makes Orders, the matter can be finalised. If the parties are unable to reach a resolution, the path forward may involve either proceeding to a Final Hearing or an Arbitration.
1.3. Option 3 - Arbitration
1.3.1. An Arbitration is a process whereby financial matters are put before an independent Arbitrator for final determination. The process is similar to a Final Hearing at the Court. Matters may only be determined by way of Arbitration in circumstances where both parties agree and consent to appointing an Arbitrator and where the issues in dispute relate to financial matters.
- Both litigated and non-litigated matters can be referred to Arbitration, meaning that parties do not have to have an ongoing court matter to have issues determined by way of Arbitration.
- Like a final hearing before the Court, the parties each file evidence through Tender Bundles, Affidavits and Reports. The parties will be cross-examined about their Affidavit by the legal representatives, as will any supporting witnesses. If there is an expert witness, such as a valuer, they too will also be cross-examined.
- The Arbitrator will then consider all of the evidence put before him/her and prepare an Award setting out the decision.
- An Arbitration can usually occur within 3-4 months of selecting an Arbitrator, pendant upon the party’s schedules. The usual process forward would be for one party to propose a panel of three (3) Arbitrators for the other to select from.
1.4. Option 4 – Final Hearing
- A Final Hearing takes place before a Judge of the Court for final determination.
- Like an Arbitration, all evidence is filed by way of Tender Bundles, Affidavits and Reports and each party is cross-examined.
- A Judge will then consider all of the evidence put before His/Her Honour and prepare a Judgment setting out the decision.
- Final Hearings are a lengthy and delayed process. It is not unusual for matters to be on foot for an excess of two years before they are allocated a date for a Final Hearing due to the Courts backlog.
Litigation can be a lengthy and costly process. The costs are not exclusively financial costs. Parties should also consider the emotional and stress toll that years of litigation can have. Accordingly, it is often in the best interest of the parties to seriously consider alternative dispute resolution methods, rather than wait to have the matter determined at a final hearing.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.