As of 1 September 2021, the Family Court of Australia and the Federal Circuit Court of Australia merged to form one Court known as the Federal Circuit and Family Court of Australia (FCFCOA). A number of changes were introduced with this merger, including the requirement of a genuine steps certificate. Among other things, the genuine steps certificate tells the Court that the person filing the Certificate has invited the other party to mediation and that the parties have participated in dispute resolution.
Prior to the merging of the Court, engaging in dispute resolution before initiating Court proceedings was only a requirement for parenting matters not property matters. As a result of the merger, almost all of our clients here at East Coast Family Lawyers have engaged in pre-court mediation throughout their family law matter.
Here at East Coast Family Lawyers, we have been able to see how effective the new Court rules have been in ensuring disputes are settled according to law and as quickly, inexpensively and efficiently as possible.
In the 11 months since the commencement of the FCFCOA, a great number of our matters have settled by way of a pre-Court mediation as well as Court based mediations. We feel this is a great outcome for our clients as it alleviates the expense, delay and emotional strain of going through Court proceedings.
Unfortunately, mediation is not always successful and some of our clients will require a judicial determination for their family law matter. There are a number of reasons why a mediation may not be successful including that the parties are too far apart in their positions, one party fails to make a genuine effort to settle the dispute or one party may not have had the benefit of legal advice.
Even if mediation is unsuccessful in parties reaching a final outcome, it can still assist the parties in narrowing the issues in dispute.
To start the process for mediation, you and the other party must first locate and agree on a mediator to conduct the mediation. It is important to engage a suitable mediator for your particular dispute. For example, if you are seeking a mediation on parenting matters, you should ensure you engage a Registered Family Dispute Resolution Practitioner as they are able to issue Section 60I certificates.
The next step is to consider whether the parties are seeking the assistance of lawyers to act on their behalf in the mediation. In a lawyer assisted mediation, your lawyer will advocate on your behalf, help narrow the issues in dispute and provide you with advice throughout the mediation. If you choose a mediation without lawyers, we recommend that you seek legal advice prior to a mediation to ensure you have an understanding of your entitlements before mediating.
It is important that prior to a mediation, you consider and communicate to the mediator the issues in dispute. If you are assisted by a lawyer, they will be able to do his on your behalf. It is prudent to have thought about what points you are willing to make concessions on and what issues you are not willing to move on. A successful mediation requires negotiation and compromise on the part of both parties so it is important you go into the mediation with this attitude.
If you come to an agreement at mediation, you typically will need to finalise the agreement by way of Consent Orders or a Parenting Plan (for parenting matters).
If you are not able to reach an agreement at mediation, the next step may be to commence Court Proceedings.
If you would like more information about the mediation process or you need assistance, please telephone us on 4322 0251 or contact us at [email protected]