When you hear the phrase “family law” you might immediately start thinking about long legal battles, arguments, solicitors, barristers and court. This is inevitable given our family law system is structured on a piece of legislation (the Family Law Act) that effectively tries to explain and set out how people should act when they are involved in a dispute regarding children and/or property.
Needless to say, going to court is a costly and timely process. Currently, for a final hearing you can be waiting about two to three years from the day you initiate proceedings. As you can imagine, this can put a lot of strain on family relationships and friendships, your mental wellbeing, as well as your budget – particularly when you can expect to spend upwards of $40,000 to $50,000 to litigate your matter to a final hearing. Some people just simply do not have the money or the time to pursue such an avenue of resolution.
Fortunately, there are many other dispute resolution avenues that are available for parties to a dispute to explore and attempt (and which in many cases they should attempt in the first instance). These include:
- round table conference (if appropriate);
- mediation/family dispute resolution;
- child-inclusive conference (if it is a parenting matter);
If all the avenues above are exhausted, or they are not appropriate in the particular circumstances of the dispute, then perhaps you ought to consider initiating proceedings in either the Federal Circuit Court or Family Court of Australia under the Family Law Act. There is certainly a place for the court when it comes to adjudicating a dispute that parties simply cannot resolve.
In recent times, the courts have also changed their practices and increased the services they provide to dispute resolution. These cannot be overlooked in any way and include such things as:
- registrar led case management systems for financial settlements that are $500,000 or less;
- registrar led case management programs for non-complex financial settlements that exceed $500,000; and
- child-inclusive mediations with the assistance of a registrar and a family consultant.
However, you can only access these processes once you have commenced court proceedings. Therefore, we look to the alternate dispute resolution processes outlined earlier and emphasise the value of reaching a resolution outside of court.
By resolving your dispute outside of court, whether or not you have commenced proceedings, you are saving yourself significant funds, time and heartache.
Engaging in an alternate means of dispute resolution still requires some work in the sense of ensuring:
- disclosure and valuations of the assets and liabilities has been exchanged or otherwise obtained (for financial settlement matters only);
- there is an appropriate understanding as to the parties’ contributions and future needs in the context of the financial settlement; and
- there is an appropriate understanding of the views of the children (if any, and if appropriate).
If parties can achieve these three basic steps (where necessary and subject to the type of dispute), then there is no reason why parties cannot engage in discussions, whether by way of a formal mediation or family dispute resolution process, or even a round table conference convened by solicitors.
Mediations, family dispute resolution processes and child-inclusive conferences differ from a round table conference. The former involve an impartial third party who facilitates settlement discussions between the disputing parties. In the case of a child-inclusive conference, this may also include a person who meets with the children to obtain their views to present to the parties during a mediation process.
A round table conference is different because it is usually convened only by solicitors and does not include an independent third party. Your solicitor is best placed to advise as to which process is appropriate in your circumstances.
If you have concerns for your safety, there are allegations of violence, or there is a domestic violence order in place, then you should make sure that your solicitor is aware of these.
In the event that one of these dispute resolution processes does not work, then you may consider arbitration. Arbitration is another form of dispute resolution process and effectively brings the court model into a private setting without having to formally file court material. An arbitration involves the appointment of an arbitrator (usually a very experienced barrister or sometimes a former judge), who then asks for all of the necessary evidence to review the case and provide a decision. This can be a costly process given the documentation that needs to be produced and exchanged. However, by engaging in arbitration, you avoid the delays and further expenditure that are associated with formally commencing family law proceedings.
It is important to consider your available options when it comes to resolving your matter outside of court. There is great value in maintaining an amicable relationship with the person from whom you are separating as it will not only save time but it will also save you money, and importantly, if there are children involved, provide for a more positive co-parenting relationship moving forward.