The best pathway for everyone involved, and indeed in the eyes of the law, is to resolve family law disputes without having to resort to litigation. However, affected parties may also seek the Court’s assistance, which can refer them to other dispute resolution mechanisms outlined in the Family Law Act 1975 (Cth) (the FLA), including private negotiations, counsellling, family dispute resolution and arbitration.
For private negotiation, parties can enlist the help of a lawyer or negotiate between themselves. This can be a cost-effective method of dispute resolution, however, as family law matters are often fraught with emotion, things can get tricky and you may want to seek a skilled lawyer’s advice.
Relationship or personal counselling is another viable option for parties involved in a family conflict. Accredited family counsellors to assist under provisions of the FLA. Any statements made during counselling sessions are, for the most part, confidential. Confidentiality is extended to the Child Responsive Program. A family counsellor or practitioner may be compelled to disclose information contained in statements under the following circumstances:
- They are compelled by law to report the information, such as instances of child abuse or a risk of child abuse;
- They hold reasonable belief that disclosure is necessary in order to protect the child from harm, or to protect against threats to a person’s life, health or property;
- The information would help the independent child’s lawyer to perform their role;
- Under Section 60L of the FLA, it is necessary for the provision of a family dispute resolution certificate; or
- The parties or persons with parental responsibility for the child have provided their consent.
Family dispute resolution is another mechanism at your disposal, which encompasses mediation and conciliation, as outlined in Section 10F of the FLA. Family dispute resolution practitioners, who, according to the FLA and the Family Law Regulations 1984 (Cth), must have the appropriate training, qualifications and accreditation with the Attorney-General’s Department, will speak to the parties involved before a joint session is held. These preliminary sessions are confidential and help outline the process whilst raising any concerns either party might have. Joint sessions can be conducted over the phone, via video link, or in separate rooms, where the practitioner will play the intermediary between the parties. Legal representatives or a support person can also be involved if both parties agree to it. Any outstanding issues are identified and an agenda is drawn up to deal with each issue. Both parties are allowed the voice their thoughts, uninterrupted. The ultimate aim is to reach a family dispute resolution agreement, a signed memorandum of understanding, or a parenting plan. These agreements aren’t generally legally binding, but they may be filed later in Court to form part of Consent Orders, which are enforceable.
Arbitration can be undertaken prior to litigation or after a matter is heard in court, although it is not compulsory. Similar to the adversarial system found in court, the parties present evidence and arguments before an independent third party, who will then make a legally binding determination.
In times of complex family law matters, you can depend on Fred Kalouche & Associates on (02) 8062 6300.