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Mediation and Your Family Law Dispute

Mediation and Your Family Law Dispute – Agreements that Suit Your Needs

WHAT IS MEDIATION?

Mediation is an alternative way to determine a family law dispute outside of the courts. The Mediator Standards Board defines mediation as: “a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes.”

It is a process of problem-solving that is guided by an impartial third party called a mediator.

WHAT DOES A MEDIATOR DO?

In family law, the role of the mediator is to facilitate the process of dispute and conflict resolution while the content of the discussions rests with the parties. The mediator can assist the parties to clarify the most pertinent issues and consider ways to resolve these issues. A mediator will not, and cannot, give advice about your dispute or determine the dispute for you.

HOW IS MEDIATION DIFFERENT FROM COUNSELLING, CONCILIATION OR ARBITRATION

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Judicial Mediation: A New Option To Resolve Your Dispute

As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.

The Judicial Mediator

The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge.

How to Initiate Judicial Mediation

Judicial Mediation can be initiated in two ways. Firstly, you or your marriage lawyer can make an oral application in court. Alternatively, you or your marriage lawyer may apply for judicial mediation in writing to the Docket Judge. The written application must include a brief summary in bullet point format addressing why the matter is suitable for Judicial Mediation.

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Domestic Violence and Family Law

Domestic Violence can affect people of all ages, socioeconomic and demographic groups and unfortunately can often go unreported particularly when it occurs during a relationship with a spouse or partner. However it is not uncommon for historical and current domestic violence to come to light particularly in circumstances of a family law separation. In June 2012, the definition of family violence was amended to include other behaviours that constitute family violence.

The Family Law Act defines Family Violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The legislation includes behaviours such as stalking, repeated derogatory taunts, intentionally damaging property, causing death or injury to an animal and unreasonably denying a family member of their financial autonomy. With respect to children, the legislation also states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”.

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Child Support Lawyers can help to challenge your assessment

If you are unhappy with your child support assessment, your child support lawyers can apply to the Registrar for a change of assessment in special circumstances. Although the Child Support Act does not define the meaning of ‘special circumstances’, the Family Court indicates that something special or out of the ordinary is required: Gyyselman and Gyselman (1992) FLC 92-279. The Registrar only has the power to make a change of child support assessment for 10 discrete reasons. These are:

  1. The costs of spending time with or communicating with the child(ren) are more than 5% of your adjusted taxable income amount
  2. The child(ren) has special needs
  3. There are extra costs in caring for, educating or training the child(ren) in the way both parents intended
  4. The child(ren) has income, a earning capcity, property and/or financial resources
  5. You have provided money, goods or property for the benefit of the child(ren)
  6. The costs of child care for the child(ren) under 12 years of age has changed
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Family Law, Creditors and other third parties

Family Law, Creditors and other third parties

Typically, family court proceedings involve two parties, namely married or de facto spouses in a property related matter, or two parents in a parenting matter. Additional parties may be joined to parenting proceedings in particular circumstances, such as grandparents or another person concerned with the care, welfare and development of the child or children.

In property matters, third parties may also be joined as parties to the proceedings in a number of circumstances. Some examples of third parties that may be joined to the Family Court property proceedings include:

  • Creditors of the spouses or their related corporate entities
  • In some cases the ATO
  • Co owners of any real estate or other asset including corporate interests
  • Companies or trust entities that are connected to the parties or where the parties have a financial connection

What type of orders can the Court make against a creditor or third party?

  • Once they are a party to the proceedings the court can make orders that effect the rights of the third parties including
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5 Essential Skills of a Family Mediator

1. Active Listening

A good mediator will listen by fully concentrating, understanding and responding to what is being said by the parties.  Active listening may also involve the mediator clarifying the meaning of a message by asking further questions.

2. Emotional Intelligence

Emotional intelligence is the ability to recognise and manage your own emotions as well as responding to the emotions of others appropriately. Mediators are usually very skilled at relating to their clients.  They are good at understanding the needs and feelings of others to ensure their clients feel they are being heard. Moreover, mediators have excellent communication and conflict management skills to resolve disputes effectively.

3. Problem Solving

Every family is different in their construction, needs, and values. Consequently, a one size fits all approach will often fail to provide effective solutions to all families. Accordingly, a family mediator is usually an effective problem solver and able to adapt to the needs of a variety of families.

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Who Can Access My Family Court Records?

Like other family law lawyers, I am often asked whether non-parties (persons that are not directly involved in the family law litigation) are able to access the Court records relating to the case.

Documents filed in a family law case (and other documents relating to the case) are held in a Family Court case file.  This information is protected under the Family Law Act 1975 and the Family Law Rules 2004.  For example:

  • Rule 24.13 of the Family Law Rules 2004 limits those who are allowed to access the Court’s records in family law cases;
  • Section 121 of the Family Law Act 1975 limits the publication of reports of family law proceedings and of lists of cases. There are exceptions to this;
  • Family Law Judgments are reported by the Court in a de-identified form (for example, with pseudonyms replacing the parties’ real names).

There are also exceptions to the restrictions to a Court file, including research (Regulation 24.13(1)(d) Family Law Rules 2004) or by the Australian Taxation Office (Commissioner of Taxation & Darling (2014) FLC 93-583).

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Quick Questions Answered: Property Settlement Agreement

  1. What is a Property Settlement Agreement?

A Property Settlement Agreement contains the agreed terms to divide property between you and your former partner following separation. This includes assets, liabilities and superannuation.

  1. When Can I Get A Property Settlement Agreement?

You can finalise a property settlement agreement as soon as you and your former partner have decided to separate i.e. end your relationship.

  1. What if we are still living under the same roof?

You can be living under the same roof but still be considered ‘legally separated’. You do not need to be living in separate households; however, your relationship does need to have ended.

  1. What are the deadlines for obtaining a Property Settlement Agreement?

The Family Law Act 1975 (Cth) provides some “deadline dates” depending on whether you were married or in a de facto relationship. There are some exceptions however, the general rule is:

For married couples: You have 12 months from the date your divorce* comes into effect to make an application for a Property Settlement.

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