RECENT MEDIATION INITIATIVES IN THE FAMILY COURT & FEDERAL MAGISTRATES COURT

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1 RECENT MEDIATION INITIATIVES IN THE FAMILY COURT & FEDERAL MAGISTRATES COURT Presented by Maurice Edwards, Senior Consultant/Mediator, Watts McCray Lawyers

2 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

3 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.

4 The Family Court of Australia From 1976 The Family Law Act, 1975 came into effect on 5 January It heralded a new era and featured No Fault divorce. The grounds of divorce was irretrievable breakdown of marriage based on 12 months separation.

5 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).

6 The Family Court of Australia From 1976 Wigs and gowns were not worn by Judges. An informal approach was adopted.

7 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.

8 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.

9 Federal Magistrates Court 2000 The Federal Magistrates Court was established by the Federal Magistrates Act The First Federal Magistrates were appointed in June 2000.

10 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.

11 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.

12 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.

13 Children s Cases Project 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.

14 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.

15 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.

16 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.

17 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.

18 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.

19 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.

20 The Future of Mediation in Family Law Disputes and beyond Mediation will continue to be a very useful method to resolve family law disputes.

21 The Future of Mediation in Family Law Disputes 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.

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