The Law Society of NSW Specialist Accredititation 

BLOGS

Any information contained in a blog on this website is general in nature only. The content of any blog posted below reflects information which is known to us as at the date of the posting of the blog. Please be aware that the law regularly changes. Please do not rely on the general information contained in the below blogs, instead we recommend that you contact us to obtain legal advice tailored to your own specific situation.

 

Feb04

Family Law - Court-Based Family Dispute Resolution

Amanda Quin - Thursday, February 04, 2021

Blog post by Geraldyne Keen - Email: gfk@peacockes.com

Court-Based Family Dispute Resolution

For separated parties/parents it is well known that the Family Law Courts require you to participate in Family Dispute Resolution (FDR) before making an application the Court. However, the Court also has the power to refer parties to FDR under s 13C(1)(b) of the Family Law Act 1975 when it considers it safe and appropriate for all parties to participate meaningfully.

Prior to December 2020, parties were referred to external providers such as Legal Aid or family relationship centres (e.g. Interrelate). From December 2020 the Family Court of Australia and Federal Circuit Court of Australia have introduced an internal Court-based FDR program which is assisted by a Register and where appropriate a Family Consultant (an expert in child development matters).

What to expect?

The Court can make an Order for the parties to attend FDR any time during the proceedings. The FDR conference will either take place over a full day or half day. The FDR operates similarly to an external mediation, however it involves a Registrar and sometimes a Family Consultant as mediators.

All negotiations are confidential (unless threats of immediate harm to a person or child are made). The Registrar and Family Consultant assist the parties to help reach an agreement, they do not make any decisions on the matter.

Two-part process:

Part 1: This part involves an initial teleconference with the Registrar who will explain the process, the next steps and what to expect.

Part 2: This part involves the actual FDR conference which includes identifying the issues to be addressed, negotiating (either together or by shuttle) and documenting the agreement.

Who attends?

The Registrar, Family Consultant, parties, legal representatives and the Independent Children’s Lawyer (if appointed).

What happens if an agreement is/ is not reached?

If an agreement has been reached, the Orders will be drafted and the Registrar can formally make the Final Orders. You will not be required to appear before the Judge and your matter will be finalised.

If no agreement is reached, then your matter will return before the Judge and continue through the Court process.

 

 


Jun23

Helpline for Domestic Violence

Amanda Quin - Tuesday, June 23, 2020

The NSW government operates a Domestic Violence Helpline to assist people who feel unsafe at home.

The number for the NSW Domestic Violence Line is 1800 65 64 63.

They are available 24 hours a day, 7 days a week.

Interpreters are available and all calls are confidential.

If you are hearing impaired, call the National Relay Service on 133 677.

 

 

Mar29

Parenting Issues and Covid-19

Amanda Quin - Sunday, March 29, 2020

Blog Post by Kathleen Clark:  email kjc@peacockes.com
 

 Are you a parent with concerns about parenting arrangements and Covid-19?

The following may help:

Q&As for parents from the Federal Circuit Court http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/covid/covid-faq/

Q&As for parents from the Family Court http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/covid/covid-faq/

 

Mar19

The Family Law Section of the Law Council of Australia has created a Top Ten Guide for Separated Parents during Covid19 you can find it HERE.

Apr11

Family Dispute Resolution

Amanda Quin - Wednesday, April 11, 2018

 

Family Dispute Resolution   (Blog by Kathleen Clark)

You’ve been to see your family law solicitor about a parenting matter and hear the dreaded words, “you need to attend mediation”. What does that even mean?

The Family Law Act provides that before making an application for a parenting order, a person must make a genuine effort to resolve their dispute by family dispute resolution(see section 60I(1)). It does not mean relationship or marriage counseling. Like any industry, family law has its own jargon – “family dispute resolution” is regularly interchanged with phrases such as “mediation” and “litigation intervention conference”.

Genuine effort

“Genuine effort” means that you need to participate in the mediation process in good faith. Behaviours that are NOT in good faith include:

  • Failure to make proposals in the first place
  • Unnecessary postponement of meetings
  • Refusing to agree on trivial matters
  • Shifting position just as agreement seems in sight
  • Adopting a rigid non-negotiable position
  • Failure to make counter proposals
  • Unilateral conduct which harms the mediation process
  • Refusal to sign a written agreement in respect of the mediation process or otherwise
  • Failure to do what a reasonable person would do in the circumstances

(see Tom Altobelli, A brave new world: pre-action procedures in family law, Australian Family

Lawyer, Vol 17 (2) at 34-35).

What if it fails?

If the process fails, and it may do so for a myriad of reasons, the mediator (also known as family dispute resolution practitioner) will issue each participant with a section 60I certificate.This is then filed with a court application for parenting orders.There are different types of certificates, and you should check with your lawyer about what type you have been issued, and whether there are any potential cost implications.

The Process

Each mediation provider has their own process.Broadly speaking:

  • There is an intake phase.This provides each person participating in the mediation a chance to meet with the mediator, explain how the parenting relationship has worked, current issues and their concerns.Some providers at this stage require each participant to undergo some courses, counselling or other training to ensure they are ready to mediate.
  • There is the mediation phase.What this looks like for each mediation is determined on a case by case basis.Some mediations are conducted by telephone, some in separate rooms (called shuttle mediation) and some face to face.Broadly speaking there is opportunity at the commencement of the mediation for each person to say what has brought them to mediation, and what they are hoping to achieve.The mediator will then facilitate discussion between the participants and help them explore options for resolution.It is not the mediator’s role to decide about certain facts or decide who is right.The mediator controls the process that allows the attendees to try and resolve their dispute.

Parenting Plan or Orders

If agreement is reached, you may receive a parenting plan.A parenting plan is a written document, signed and dated by the attendees.It may deal with a variety of matters such as:

  • Who the children will live with
  • How the children will spend time with each parent
  • Communication between attendees/attendees and each child
  • How the plan will be updated

Attendees may wish for the parenting to plan to become a Court order and will need to talk to a solicitor about this process.

Preparation

Mediation is not just another hoop to jump through to get to Court.It is an opportunity for you to make the decision about how to parent your children.If you cannot agree or compromise with the other person involved, then you may end up handing over your power to make decisions about how to parent your children to lawyers and judges.Whilst sometimes this is necessary, it is far better if it can be avoided.

Given its importance, you should seek legal advice as part of your preparation for mediation.Things to discuss with your lawyer include:

  • What does the Family Law Act say about parenting matters?
  • What types of proposals would be reasonable in your particular circumstances?
  • What are some negotiating tips and strategies that you can employ?
  • What kind of topics should you be ready to discuss at the mediation, and what points will you raise?

If you would like legal advice, please contact either Tim Cullenward or Kathleen Clark today on (02) 6882 3133.

Blog posted by Amanda Quin. Blog Author Kathleen Clark.