As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.
The Judicial Mediator
The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge.
How to Initiate Judicial Mediation
Judicial Mediation can be initiated in two ways. Firstly, you or your marriage lawyer can make an oral application in court. Alternatively, you or your marriage lawyer may apply for judicial mediation in writing to the Docket Judge. The written application must include a brief summary in bullet point format addressing why the matter is suitable for Judicial Mediation.
Once an application has been made, the other party has an opportunity to respond. Then the matter proceeds with or without an oral hearing, depending on whether the parties consent which will determine if the application for Judicial Mediation is granted.
Where a Judicial Mediation has been granted, all parties to the dispute and their marriage lawyer must personally attend. This is regardless of where you reside in Australia. Exceptions to this may be made in exceptional circumstances.
Parties and their legal representatives must protect the confidentiality of the mediation.
What Matters Are Suitable
- Matters where both parties are legally represented by a marriage lawyer. Alternatively, if both parties are self-represented and the Docket Judge has determined the matter suitable.
- Property disputes
- Parenting disputes where there is no allegation of serious risk and/or family violence
- Appropriate child support matters
- Matters where the costs are likely to be disproportionate to the subject matter of the dispute
- Any other matter that the Docket Judge decides is suitable.
What Happens After
After a Judicial Mediation has taken place, the Judicial Mediator must not hear or determine any matter in the future proceedings of the case. Where the parties have failed to come to an agreement, the matter can be referred back to the court for further directions and a trial if necessary.
For advice about mediation contact us on 1800 300 170 or email us at familylaw@matthewsfolbigg.com.au
Disclaimer
Family law situations can be complex and sometimes they can involve serious issues. Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.
