Family dispute resolution is a compulsory process (in most circumstances) that facilitates dispute resolution outside of the court system with the assistance of a neutral third party. You may elect to engage in private mediation (generally a quicker process), or public mediation (more cost-effective than private).
At Ramsden Family Law, we have in house mediator, Matthew Shepherd, who is an accredited family law specialist and registered family dispute resolution practitioner who can conduct your mediation. Once agreement has been reached, you may wish to formalise your agreement through Consent Orders or by way of a Financial Agreement (although these are not essential).
There are many advantages of family dispute resolution, including the impartial, informal, and inexpensive nature of the procedure – however it is important to note that any agreement reached will not be legally binding, unless the parties engage in consent orders or a financial agreement.
Matthew Shepherd has been a practising solicitor since his admission in 1990. He is an accredited family law specialist since 1996 and a nationally accredited mediator since 2010. He is also a registered family dispute resolution practitioner. The goal of mediation is to achieve an outcome without going to court. Matthew is an expert mediator and excels at facilitating meaningful communication between clients. Fostering this kind of environment means parties can successfully address and solve the complex legal and financial problems arising from the breakdown of the marriage.
It is not only preferable but compulsory that both parties make a genuine effort to resolve the dispute without going to court. Family dispute resolution facilitates this in a calm, professional environment with the assistance of a neutral third party (the mediator). Parties have the option of engaging a private or public mediator. Private mediation is at a cost that is typically shared equally by the parties. It is often a quicker process than choosing mediation through a public organisation, for example Relationships Australia. Public mediations can often be delayed due to the high number of clients but are more cost effective than private mediations.
If the parties attempt family dispute resolution and cannot reach an agreement, then a section 60i certificate will be issued. This will allow a party to commence court proceedings.
If family dispute resolution is able to facilitate the parties reaching an agreement, you have the choice to formalise the agreement or leave it on an informal “handshake” basis. There is no law that states you must formalise an agreement, but most parties choose to formalise in order to ensure the agreement is both enforceable and legally binding.
The first way to formalise an agreement is through Consent Orders. Consent orders can be made in relation to parenting or property or financial agreements. Once an agreement has been made, the parties’ lawyers will draft the consent orders and file them with the Federal Circuit and Family Court of Australia. Once approved by a Registrar, the orders become binding and enforceable.
Another way to formalise an agreement is by way of a Financial Agreement. Financial agreements can be made in relation to property settlements and/or spousal maintenance. An agreement will be drafted by one party’s lawyer and if both parties are satisfied with the agreement they will sign it. Before parties sign however, they must each have received independent legal advice.
In respect of parenting arrangements, parents can enter into a parenting plan which is not enforceable and does not stop a parent from making an application to a court for parenting orders (although a court will take into account the terms of the parenting plan). Parents can also enter into a binding child support agreement which can create enforceable obligations for contributing children’s expenses.
There are various advantages to family dispute resolution processes like mediation including:
The main disadvantage of mediation is that the parties will not be legally bound by any agreement reached. In order to ensure the agreement is binding and enforceable, the parties need to formalise the agreement by way of consent orders or a financial agreement.
Although the public mediation system is cost effective, it is backlogged, meaning there can be a significant delay in the parties attending mediation. This in turn means a delay in the parties coming to an agreement. Parties can choose to use a private mediator which can generally be organised quickly although at greater cost.
Mediation may be difficult if one party is unwilling to cooperate or compromise with the other. Both parties should be open, communicative and respectful of the other.