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Family Law Judges are not mediators, or are they?

March 7th, 2019

In another surprising development in the ever-changing landscape of Australian family law, Judges in the Federal Circuit Court of Australia can now act in certain cases, as mediators.  “Judicial Mediations” as they are called, are an entirely new service now being provided by Judges of the Federal Circuit Court of Australia; Judges who, it is well-documented, are already overburdened by huge case loads.

The rules surrounding Judicial Mediations are set out in Practice Direction No. 1 of 2019 which commenced on 1 January 2019 and is available on the Federal Circuit Court website.

A brief summary of the main rules of Judicial Mediations is as follows:

  • a party to a case before the Federal Circuit Court may make an oral or written application for Judicial Mediation;
  • the “docket Judge” who the parties ordinarily appear before, determines, according to certain criteria, whether the case is suitable for Judicial Mediation;
  • in considering whether a matter is suitable the docket Judge will consider a list of suitable matters provided for in the practice direction; however he or she may determine that another matter not provided for in that list is still suitable;
  • suitable matters include:
    • those where both parties are legally represented;
    • those where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation;
    • property disputes;
    • parenting disputes where there is no  allegation of  serious risk and/or family violence;
    • appropriate child support matters;
    • compliance with orders for a prior unsuccessful private mediation; and
    • a risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute;
  • it is expected that all mediation alternatives (including private mediation with a family dispute resolution practitioner) will be exhausted prior to a Judicial Mediation;
  • if ordered, a new Judge will be appointed as the Judicial Mediator so the case is not mediated by the docket Judge or the trial Judge (who is usually one and the same);
  • significant preparation is required for Judicial Mediation, similar to that required for a trial; and
  • all parties and any legal representatives must attend the Judicial Mediation.

How frequently Judicial Mediations are ordered and how effective they are, remains to be seen.  It is hoped that this new service will not significantly increase the already large case loads being handled by Federal Circuit Court Judges, and in the process increase waiting times being experienced in the courts.

For more information about Judicial Mediations or any other family law issues, feel free to contact Julie Hodge, family lawyer & Senior Associate on 07 4036 9706.

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The proposed overhaul of the Australian Family Law System – What is on the table?

October 30th, 2018

When it comes to family law in Australia, much change is on the horizon.  On 2 October 2018, the Australian Law Reform Commission (“ALRC”) released its discussion paper (DP 86) which raises some significant changes being contemplated to the Australian family law system.  The discussion paper is a result of an extensive review by the ALRC which commenced on 1 October 2017.

124 proposals for change are made, and 33 questions are asked about the Australian family law system.  Some of the proposed changes remedy what many agree are obvious deficiencies in the current system.  Other proposals will no doubt draw extensive comment from the community and the professionals who work in this sphere.

For example, the rollout of a national education and awareness campaign regarding the family law system (Proposal 2-1) and the establishment of Families Hubs where people can access advice and support services (Proposal 4-3) should greatly assist the masses of people navigating the system each year.  This in turn will hopefully alleviate some of the current pressures on the Family Law Courts.

Substantial redrafting of the Family Law Act 1975 (Cth) and other legislation is proposed to simplify that legislation and increase readability (Proposal 3-1).  In an area of law with a significant number of self‑represented litigants, such a proposal may be seen as worthy of further consideration.

The current “best interests test” in parenting matters is proposed to be reframed as “safety and best interests” which is in line with the primary considerations set out in the current legislation (Proposal 3-3).  Changes are also proposed to the way in which Judges assess what orders or parenting arrangements are in a child’s best interests (Proposal 3-5).

The current requirement to attempt family dispute resolution prior to commencing court proceedings regarding children’s matters is proposed to extend to property and financial matters, with specific exceptions (Proposal 5-3).  This is consistent with current best practise guidelines and, in the writer’s experience, the reality of most property matters.

“Specialist court pathways” are proposed including a simplified small property claims process, a specialist family violence list and the Indigenous List (Proposal 6-3).  A “post-order parenting support service” is also contemplated (Proposal 6-9).

The creation of a “children’s advocate” (Proposal 7-8) and the requirement to give a child the subject of Court proceedings the opportunity to express their views (Proposal 7-3) are two proposals which could reasonably be expected to draw support from a large sector of the community, particularly those who have experienced such litigation firsthand.  A children’s advocate would be a social science professional with expertise working with children who would, amongst other things, assist the child in expressing their views (should they wish to do so), keep the child informed about the proceedings and explain any decisions made (Proposal 7-8).

Following the discussion paper, the ALRC will prepare a final report recommending reform of the Australian Family Law System by 31 March 2019.  Read the discussion paper here.  To make a submission email info@alrc.gov.au.

For more information about the family law reforms or any other family law issues, please contact a member of our family law team.

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