Presented by

RECENT MEDIATION INITIATIVES

IN THE FAMILY COURT &

FEDERAL MAGISTRATES COURT

Maurice Edwards, Senior Consultant/Mediator, Watts McCray Lawyers

Family Law Proceedings – Prior to 1976

The Matrimonial Causes Act 1959

Fault was a feature in the grounds for

Divorce which included, for example:

Adultery

Cruelty

Habitual drunkenness

Desertion

Family Law Proceedings – Prior to 1976

• There was extensive use of Private

Investigators.

• Discretion statements were used (not

disclosed to other party).

• Proceedings were adversarial in nature.

• The role for Mediation was limited.

The Family Court of Australia – From 1976

The Family Law Act, 1975 came into

effect on 5 January 1976.

It heralded a new era and featured

‘No Fault’ divorce. The grounds of

divorce was irretrievable breakdown

of marriage based on 12 months

separation.

The Family Court of Australia – From 1976

Registrars appointed to mediate and

conciliate property matters.

• Regulation 96 Conferences (Later Order

24 Conferences and now known as

Conciliation Conferences).

The Family Court of Australia – From 1976

Wigs and gowns were not worn by

Judges.

• An informal approach was adopted.

The Family Court of Australia – From 1976

The new approach to family law was not

universally accepted and was criticised

throughout sections of the community. The

Court faced significant difficulties, in the late

1970’s to mid 1980’s:

Bombings.

Threats.

Loss of life.

The Family Court of Australia – From 1976

Conciliation/Mediation Conferences by Registrars

and the use of family counsellors and other

experts increased the rate of settled matters in the

Family Court.

Less than 20% of all cases in the Family Court ran

to a hearing.

Federal Magistrates Court – 2000

The Federal Magistrates Court was

established by the Federal Magistrates

Act 1999.

The First Federal Magistrates were

appointed in June 2000.

Federal Magistrates Court – 2000

The Courts’ objective was to provide a simple

and accessible alternative to litigation in the

Federal Court of Australia and the Family

Court of Australia and to relieve the workload

of those Courts.

The Court established a Docket Case

Management process to assist in the early

resolution of disputes.

Federal Magistrates Court – 2000

Intentions of the Docket Case Management

System:

A consistency of approach throughout the matter's history.

A Federal Magistrate familiar with the matter would result in a

more efficient management of the matter.

Fewer formal Directions and a reduction of the number of Court

appearances.

Timely identification of matters suitable for Dispute Resolution.

Issues to be identified faster promoting an earlier opportunity for

settlement.

New Family Law Rules 2004 – A Major Revamp

on the 1984 Rules & Regulations

Pre Action procedures – duty for each party to provide

documents prior to proceedings being commenced.

Early Mediation – Case Assessment Conferences with

Registrars at First Return date at Court.

Rules in relation to the use of Single Experts for valuations

of property and business and in relation to parenting

matters, Child Psychologists and Psychiatrists.

Joint Mediation/Conciliation with Registrars and Family

Consultants.

Children’s Cases Project – 2004 - 2006

• The presiding Judge is charged with an active

role in relation to the conduct of the hearing.

• The parties were able to address the Judge

directly in relation to their concerns.

• Family Consultants gave oral reports after

counselling sessions.

• Some technical rules were removed to assist

in achieving a better child focus.

Less Adversarial Trial (LAT) – An Adaption

of the CCP Program

The Judge controls the Hearing process and the

nature of the enquiry.

A Family Consultant is involved as an expert

adviser at the initial stage.

The traditional technical rules of evidence and

detailed procedural requirements are removed.

The Trial was treated as a continuing process from

the day of the first meeting between the Judge.

Mandatory Mediation in Parenting Matters –

Part of the 2006 Amendments

Family Relationship Centres established

Mediators with specific qualifications and

training became Family Dispute Resolution

Practitioners (FDRPs).

FDRPs were authorised to issue S60I

Certificates enabling the parties to

commence Court proceedings.

Early Intervention Unit – 2011

Legal Aid Commission of NSW

An experienced Mediator is available at the

Parramatta Family and Federal Magistrates

Courts to mediate disputes referred by the

Courts or Independent Children’s Lawyer or

Duty Solicitor.

Settlement rates at these mediations currently

hold an 83% success rate.

Plans to extend this mediation service are

being considered.

Private Mediations in Property Matters

Brisbane Pilot Scheme established as a

result of:

• Limited Court resources.

• Insufficient time available for

Conciliation Conferences.

• A preference in having Registrars

undertake other work.

• Potentially better outcomes for

litigants.

Private Mediations in Property Matters

Brisbane Pilot Scheme has been extended to

the Sydney Registry of the Family Court and

Federal Magistrates Court.

Joint project of the Law Society of NSW, the

Family Court, the Federal Magistrates Court

and the NSW Bar Association.

Reduced cost to the litigants.

Mandatory referrals pursuant to S13(C) of the

Family Law Act.

Private Mediations in Property Matters

Section 13(C) of the Family Law Act requires

that:

One or more of the parties to the proceedings

attend Family Counselling;

The parties to the proceedings attend Family

Dispute Resolution;

One or more of the parties to the proceedings

participate in an appropriate course, program

or other service.

The Future of Mediation in Family Law Disputes -

2012 and beyond

Mediation will continue to be a very useful

method to resolve family law disputes.

The Future of Mediation in Family Law Disputes -

2012 and beyond

Possible extension of mediations in property

matters during the course of the Court

proceedings.

Possible expansion of the use of private

mediations in property matters.

Despite the success of mediations, there will

always be a percentage of disputes that

need a judicial decision.

Final

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