So Mediation Failed. What next?
In family law matters, reaching an agreement with your ex outside of Court, either in relation to property or parenting matters, is often the desired outcome. However, there are instances where finding common ground through mediation or another family dispute resolution (“FDR”) process is not possible. In such cases, proceedings may need to be commenced in Court. This article will shed light on what happens if you can't reach an agreement with your ex outside of Court and explore the process of commencing family law proceedings in Court if required.
1. The Role of Mediation & Family Dispute Resolution (FDR)
Mediation and FDR serve as an essential step in family law matters, encouraging parties to work together outside of Court to reach mutually satisfactory agreements. With the assistance of a mediator who acts as an independent third party, discussions and negotiations take place between the parties in an effort to find resolutions for property and/or parenting matters.
In Australia, FDR is compulsory for separated couples who are seeking to apply to the Court for parenting matters. This means that before a Court will hear a parenting dispute, the parties must have firstly made a genuine effort to resolve the dispute through FDR. If the parties are unable to reach an agreement through FDR, the mediator or family dispute resolution practitioner (“FDRP”) will issue a section 60i certificate pursuant to section 60i of the Family Law Act 1975. The section 60i certificate then allows the parties to apply to the Court for parenting Orders. This application to the Court must be made within 12 months of the issued section 60i certificate.
It’s important to note that a section 60i certificate is not required for property matters – it is only required for parenting matters. However, parties involved in property matters are still encouraged to attempt alternative dispute resolution methods such as mediation before filing in Court.
2. Commencing Family Law Proceedings
If mediation fails to yield an agreement, alternative options must be considered including commencing family law proceedings in Court. An Initiating Application, alongside various other documents, is filed with the Court which sets the legal process in motion and outlines the Orders sought concerning property and/or parenting arrangements.
Before embarking on family law proceedings, it is crucial that you speak to one of our family lawyers first so that we can provide advice and guidance tailored to your specific situation. We can explain your rights and obligations, assist you with preparing the necessary documents, and offer you support throughout the process.
3. The Court Process
Once family law proceedings are initiated, the Court will assess the evidence presented by both parties, and make decisions based on legal principles and the best interests of the children (in parenting matters) or the principles of justice and equity (in property matters). Various Court hearings, submission of supporting documents, and the potential involvement of expert reports or valuations may be required. You will also be ordered to attend mediation.
In property matters, parties are typically required to provide full and frank financial disclosure. This includes the sharing of relevant financial information such as income, assets, debts and liabilities. The Court may also order valuations of assets, such as real estate or businesses, to determine their value for division purposes.
In parenting matters, the Court may order a family report to be prepared by a family consultant or psychologist to assess the best interests of the child or children. Additionally, an Independent Children's Lawyer (“ICL”) may be appointed to represent the child or children's best interests. Parties are also required to provide disclosure pertaining to parenting matters.
4. Final Hearing
Following the assessment of evidence and submissions at Final Hearing from both parties, the Judge will make a decision based on the facts and the law. Any Final Orders made by the Judge are legally binding and both parties must comply with them. If one party fails to adhere to the Orders, enforcement mechanisms may be employed to ensure compliance.
If you are not satisfied with the decision of the Court, you may, in very limited circumstances, be able to appeal the decision to a higher Court. This process involves seeking leave to appeal and filing an appeal application.
Remember that Court Orders are legally binding, and ongoing co-operation with your ex is essential for both the well-being and smooth functioning of shared parenting arrangements (which is crucial for co-parenting success) and property settlements (which may require ongoing implementation or adjustments over time).
To find out more about mediations or the Court process generally, we invite you to reach out to our family law team on (02) 8605 3437 for an initial discussion today.