News

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.