My spouse has commenced proceedings: Can I still settle outside of the Court process?

The introduction of the Family Law Case Management Central Practice Direction has enhanced the focus on parties to resolve their matters, prior to and during their proceedings. The Central Practice Direction encourages the early resolution of family law disputes in an effort to minimise the impact of litigation on families and children.

Key takeaways 

• you can try to reach an agreement with your spouse to resolve your family law matter at any time, regardless of the stage of your proceedings; 
• the new Family Law Case Management Central Practice Direction issued by the Federal Circuit and Family Court of Australia requires parties to take genuine steps to resolve their matter prior to commencing proceedings and, again, after proceedings have been commenced; 
• there are many forms of dispute resolution available to parties. The most appropriate form will depend upon the particular circumstances of a matter;  
• dispute resolution can be conducted in urgent circumstances. This will most likely be facilitated through private mechanisms; 
• dispute resolution need not occur face to face and can be conducted electronically where, for example, there are allegations of family violence (providing appropriate safety mechanisms are implemented) or if a party is self-isolating or in quarantine due to COVID-19; and 
• dispute resolution is confidential, other than in limited circumstances. 

Impact of the new Central Practice Direction upon dispute resolution  

While dispute resolution has always been an important focus in the family law process, priority is now placed on parties engaging in dispute resolution at various stages of their matters. For example:

1. prior to commencing proceedings, parties must have taken genuine steps to resolve their dispute. In a parenting matter, parties are still required to obtain a Section 60I certificate confirming they have participated in family dispute resolution or that it is not appropriate to do so; 
2. after proceedings have been commenced, dispute resolution must occur as early as possible and no later than five months after the date of the commencement of proceedings; and
3. parties should be prepared to make and consider reasonable offers of settlement throughout their matter.

The Central Practice Direction requires parties to facilitate the resolution of disputes as quickly, inexpensively and efficiently as possible. 

It is important to note that there may be cost consequences for parties who do not comply with the requirements set out in the Central Practice Direction. 

What dispute resolution avenues are available to resolve matters outside of the Court process?

There are various types of dispute resolution processes in which parties can engage in. 

If there are already proceedings on foot, the Court, when considering which form of dispute resolution is most appropriate in the circumstances, will consider the means and resources of parties. 

The Court may consider it more appropriate for parties to participate in privately funded dispute resolution such as:

1. private mediation;
2. private, Legal Aid facilitated or community-based Family Dispute Resolution; or
3. arbitration.

Alternatively, the Court may form the view that the financial circumstances of the parties are such that they would be more suited to participating in Court-based dispute resolution. Court based dispute resolution can include a:

1. conciliation conference; 
2. judicial settlement conference; and/or
3. family dispute resolution conference.

Are there any obligations upon a party in the lead up to or during dispute resolution? 

Yes.

Parties must comply with their obligations of providing disclosure and obtaining any necessary valuations prior to and throughout their proceedings. These processes enhance the likelihood of parties being able to resolve their matter. 

The Central Practice direction requires parties to engage in good faith negotiations and a genuine effort to resolve all issues at dispute resolution. 

If my matter is urgent, can I still try to settle outside of the Court process?

Yes.  

If a matter is urgent, there is still scope for parties to conduct dispute resolution. Depending upon availability, this will most likely occur in the form of a private dispute resolution process. 

I do not feel safe around my former spouse, can we still participate in dispute resolution?

Yes.

There are various mechanisms that may be implemented to ensure it remains safe for parties to participate in dispute resolution. These can include:

1. conducting the dispute resolution session electronically;
2. if the session is to be held in person, having each party remain in separate rooms and ensuring appropriate arrangements are made for each party’s arrival to and departure from the dispute resolution session; and
3. if necessary, having a support person present, including if the dispute resolution session is to be held electronically.

It is important to ensure that the dispute resolution practitioner is aware of any safety concerns, allegations of risk, abuse or family violence so that they can make recommendations relevant to conducting the particular matter. 

Can parties still engage in dispute resolution during the COVID-19 pandemic, even if they are in quarantine or self-isolation? 

Yes. 

Dispute resolution need not occur in person. There are various avenues for conducting dispute resolution electronically or by telephone. 

Other benefits of dispute resolution

The importance and benefits of dispute resolution are recognised now more so than ever before. 

While parties can benefit from dispute resolution in different ways, depending upon the particular circumstances of their matter, some of the primary benefits of engaging in dispute resolution can include:

1. allowing parties to maintain control over the outcome of their matter; and
2. reducing the legal and emotional costs associated with litigation.

Parties can also engage in dispute resolution to resolve discrete issues and to reduce the scope of their dispute or, for example, where a dispute has arisen in relation to the interpretation of final orders.

Further, the dispute resolution process is confidential, other than in very limited circumstances. 

Parties are able to participate in a dispute resolution process more than once and are in fact encouraged to do so at various different stages before, during or after their proceedings. 

If you have any queries in relation to the dispute resolution avenues and processes, or any other family law issue, please do not hesitate to contact a member of our Family and Relationship Law team.