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Mediation is now compulsory in parenting matters. Parties must attempt mediation before they can commence court proceedings. There are exceptions to compulsory mediation in circumstances of urgency and/or family violence.
Mediation is offered by private individuals and community-based organisations (for example Interrelate and Relationships Australia).
If parenting arrangements are agreed upon at mediation, your Solicitor can then prepare a Parenting Plan or consent documents to obtain consent orders from the court.
If the matter remains unresolved after mediation is attempted, the Mediator will issue a section 60 I certificate. This is a certificate referred to in section 60 I of the Family Law Act, 1975. The issue of the certificate then allows a party to commence court action to obtain parenting orders.
Parenting court proceedings may take up to two (2) years (sometimes more) to be determined by the court on a final basis. Parties are encouraged throughout the process to reach an agreement to ensure their children’s best interests are served and the impact of the court process and parents conflict is lessened as much as possible.
Although not compulsory in property disputes, mediation should always be considered before court action is commenced to save time, money and emotional stress. Property settlement negotiations may also take place by way of a round table conference, where the parties and their Solicitors have direct upfront negotiations with each other.
In a contested property matter which is progressing through the court stages, mediation is often ordered by the court. This may occur by way of one of the Court’s Registrars’ conducting a Conciliation Certificate or by an approved private mediator conducting external mediation.
If an agreement is reached between former spouses prior to or during court action, consent orders are typically prepared by one of the Solicitors. The consent orders are signed by the parties and their Solicitors and lodged with the court. The Judge (or Magistrate in the Local Court) will make orders in chambers without the need for a court appearance. The Judge, however, must be satisfied the consent orders are properly drafted and represent a fair and equitable resolution of the matter.
It is very important to obtain information and advice from an experienced family lawyer early in the settlement dispute and often it is recommended advice be received prior to, or immediately following separation.
As with contested parenting matters, legal costs and delays in litigated property cases are significant. When considering settlement of a property matter a party must always take into account the costs they have incurred to date and the costs of progressing the matter further by court action. Making property settlement decisions is like making a business decision. Continuing with Court action because “of the principle of the matter” is usually a very expensive and ultimately unrewarding experience.
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