At the moment it is a requirement, except in limited circumstances, for parties in dispute about parenting matters to try mediation before they can commence Court proceedings.
The Australia Law Reform Commission report into the Family Law system released earlier this year recommended that the requirement to attempt mediation (or Family Dispute Resolution (“FDR”)) should be extended to property division/financial matters.
This recommendation supports the proposition that the Court should be a place of last resort.
However, the Commission is silent on a number of issues:
- Government subsidised services offering FDR are already stretched providing parenting mediation. Will additional funding be provided by the government to extend the existing services to cover property disputes?
- It is unclear whether the existing FDR practitioners – many with a background in counselling services – would have to do additional training to provide financial mediations;
- The Commission suggested there be an exception for when there is an imbalance of knowledge of the parties’ financial arrangements – but is there to be specific training for mediators to make an assessment of when that might be the case? and
- If FDR is to occur in the absence of the parties’ lawyers (as government subsidised parenting mediation currently does) who is to provide advice as to whether any agreement reached is “just and equitable” as is required under the legislation for the Court to make Orders reflecting the agreement reached?
While the recommendation is well intended these issues will need to be resolved before it could be implemented.