A mediation is a confidential discussion between parties in dispute. An independent, third party, usually with a background in family law, helps the parties talk about the issues, identify viable solutions, and work towards an agreement to end the dispute.
Mediation is an effective way to solve issues outside the courtroom, but what if this process does not result in an agreement? In cases where there is no agreement, going to court might be the next step.
Whether you are dealing with parenting or property matters, this article will discuss the importance of mediation including how long after mediation you must attend court and why a family lawyer is essential when you do.
What is Mediation?
Mediation is a structured and confidential process where an independent, accredited mediator helps separating couples resolve disputes without going to court. The mediator is a neutral third party who guides discussions but does not take sides or make decisions. Instead, they assist the parties in working toward mutually acceptable agreements.
Mediation is commonly used to resolve parenting issues, property and financial matters, communication difficulties, and other disputes that arise after separation. In Australia, parties are usually required to attempt Family Dispute Resolution (FDR) before applying to the court for parenting orders. Mediation can take place through private mediators, lawyers, psychologists, or government-funded Family Relationship Centres.
This process is generally faster, less costly, and less adversarial than court proceedings. If the parties reach an agreement, it can be recorded in a parenting plan or formalised as Consent Orders through the Federal Circuit and Family Court of Australia.
If no agreement is achieved, the mediator may issue a Section 60I certificate, which allows the parties to commence court proceedings for parenting matters. No such certificate is needed to commence proceedings for property matters.
What are some of the benefits of mediation for a legal dispute?
- You have more of a say in how your dispute is settled
- Disputes may be resolved faster and with lower legal costs than at court
- What is said during mediation is confidential, as discussions are not recorded or kept by the court
- Saves you cost, time and stress
- When an agreement is reached, parties leave the mediation knowing the outcome of the dispute instead of waiting on the court later
That said, even in the best-case scenario for mediation, the parties are not always able to reach an agreement.
So, what is the process if you need to attend court to finalise your situation?
Going to Court: Step by Step
An application is filed
The court forms you file depends on the nature of your family law issue which could include:
- Parenting matters, such as parenting arrangements and decision-making responsibility; or
- Property or financial settlement, such as dealing with the division of assets or spousal maintenance.
However, if you are seeking parenting orders or property orders, you will need to file an Initiating Application, along with other supporting documents.
Where do you file this application? You file an application in the Federal Circuit and Family Court of Australia. Basic information you need to include is your personal details (i.e., full name, date of birth, contact details, occupation) and details of the other party and information on children if applicable, key dates (i.e., date of cohabitation, marriage and separation). The important part of the court documents is setting out what orders you are seeking the court make.
First court event
Once you file your application, the first court event (called the First Return Date) will take place usually within 6 to 8 weeks of filing of your application. The First Return Date is before a Judicial Registrar of the court. You and the other party must attend.
This first court event is procedural only and sets out the next steps of the matter. For example, in a property matter, the Registrar may order the valuation of a property or business.
Interim hearing
If urgent or short-term arrangements are required while a family law matter is ongoing, the court will order an interim hearing if you seek interim orders.
The purpose of an interim hearing is to allow the court to make temporary (interim) orders that will remain in place until the matter can be resolved on a final basis. These orders might relate to matters such as where children will live or spend time, who is responsible for certain financial commitments, or whether a property can be sold pending final resolution.
An interim hearing is generally shorter and less formal than a final hearing. The court relies primarily on written evidence, including affidavits, financial statements (for property matters), and supporting documents such as school reports, text messages, or medical evidence. There is no cross-examination of witnesses at this stage, and decisions are made based on the material filed and the legal submissions made by each party’s legal representation.
The Registrar hearing the matter will then make interim orders, which are temporary and designed to maintain stability until the matter proceeds to the final hearing or is otherwise resolved. While interim orders are not final, they can sometimes remain in place for a significant period due to court timetables, so it is important that they are workable and reasonable in the circumstances.
In some situations, if there are various interim issues, there may be more than one interim hearing.
Final hearing / Trial
If the parties are unable to reach an agreement through negotiation, mediation, or interim processes, the case will eventually proceed to a final hearing, also referred to as a trial.
The final hearing is the stage where the court considers all evidence in detail and makes a final determination on the issues in dispute. The hearing is conducted before a judge who listens to the evidence from both sides, applies the relevant law, and delivers a binding decision.
Each party is required to file and serve their evidence in advance of the trial. This typically includes:
- Consolidated trial affidavits setting out each party’s version of events;
- Expert reports, such as a family report in parenting cases. A family report is a more detailed version of a child impact report; and
- Submissions prepared by the party’s legal representatives (including their appointed barristers) outlining the key issues and relevant law.
During the hearing, both parties (and sometimes witnesses or experts) may be cross-examined. This allows the judge to assess the credibility and reliability of the evidence. The trial can last anywhere from one day to several weeks, depending on the complexity of the issues.
We would engage a barrister who would assist with and advise on the preparation of the written material, submissions, objections and cross-examination of witnesses. The barrister would speak on your behalf at the trial.
After the hearing concludes, the judge will consider all evidence and submissions before delivering a final judgment. The court then makes final orders, which are legally binding and enforceable. These orders determine the long-term arrangements for the care of children, the division of property and financial resources, or both.
In parenting cases, the Court’s primary consideration is the best interests of the child, which includes ensuring the child’s safety, stability, and meaningful relationship with both parents (where appropriate).
Once final orders are made, they can only be changed in limited circumstances, such as by appeal or if there is a significant change in circumstances. The final hearing marks the conclusion of the litigation process.
Summary
There are other steps involved in the court process but the above highlight the main steps and court events that you can expect if and when you file a court application.
The processes differ depending on whether you are seeking property or parenting orders and you can expect to attend further mediation or family dispute resolution throughout the court process as the court encourages parties to try and come to a resolution between them.
How Can Ramsden Family Lawyers Help?
Ramsden Family Law supports you throughout the family dispute resolution process, and documents the outcome, but in some cases, you may need to go to court. Our family law team are highly skilled and qualified to represent you in court proceedings if your matter progresses to this stage. We have expertise in:
- Children and parenting
- Property division
- Same-sex relationships
- Mediation
- Family court representation
- Domestic violence
Why choose us over other law firms?
- Our team of 15 lawyers exclusively practice family and divorce law, including 7 Law Society Accredited Specialists
- We offer fixed fees for certain work; payment plans and are upfront with fee estimates
- Each lawyer’s file load does not compromise their efficiency
- We explore all options to resolve your case without court intervention if possible
We are proud to be acknowledged as an award-winning family law firm. Our experienced team has received numerous awards and holds respected accreditations in family law.
As one of the top family law firms, we have accredited family law specialists on our team who provide expert guidance and support, ensuring that your rights are protected, and your best interests are served throughout the legal process.
Family Law Specialists in Sydney: Get in Touch
Are you in the mediation process, dealing with Consent Orders, parenting agreements, or are you unsure about a court application?
Ramsden Family Law is your legal guide in challenging times for legal representation, including family dispute resolution services. Our promise is to stand with you, offering clarity, support, and resolutions that reflect your needs and values.
Contact us today by submitting an online enquiry, calling 1300 749 709 or emailing [email protected].
