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FAMILY LAW RULES (AMENDMENT) 1991 NO. 475

STATUTORY RULES 1991 No. 475

Issued by the authority of the Judges of the Family Court of Australia

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Law Act 1975 provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Family Law Act.

Section 123 (2) of the Family Law Act provides that sections 48, 48A, 48B, 49, and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections to regulations were references to Rules of Court.

The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed since that date.

OVERVIEW OF THE PROVISIONS

The Courts (Mediation and Arbitration) Act 1991 passed on 21 June 1991 and will come into effect on 27 December 1991. The broad thrust of the Act is to permit both the Federal and the Family Courts to provide mediation services and Court appointed arbitrators, and to enable private arbitrations to be conducted in Family Law matters.

The legislation will enable people involved in property disputes, as well as child disputes and mixed child and property disputes, to approach the Court without the necessity for commencing litigation.

The mediation service will be voluntary and will provide pre-application mediation (s19A) and will also be available in relation to proceedings that have already commenced (s19B). Co-mediation will be offered in matters where there are issues relating to both property and children, or where a matter is recruitment complex, or where it; is thought desirable for training purposes. Normally single issue matters will be referred to one mediator.

Not all matters will be treated as suitable for mediation and an information session and preliminary interview will be used as a screening procedure. Some couples will be offered mediation and some will be referred to other services within the court or, where appropriate, to outside professional and community services.

The Family Court is commencing a pilot mediation programme in Melbourne and Dandenong. The following rules provide the structure by which the mediation programme will be conducted in such a way that it is compatible with the existing Case Management Guidelines and does not hinder the progress of a matter through the Court's system.

DETAILS OF THE PROVISIONS

Rule 1 provides the the commencement date.

Rule 2 is a machinery provision.

Rule 3 inserts new Order 25A - Mediation. The details of the new order are as follows:

Division 1 - Preliminary

Order 25A Rule 1 provides the definition of the following words " dispute" "pending proceedings".and "Principal Director of Mediation". The provision also contains a note stating that under paragraph 19A(2)(b) of the Act arrangements for mediation are to be made only if a mediation service is available at the Registry of the court in which the notice is filed.

Division 2 - Voluntary Mediation

Order 25A Rule 2 provides that a notice filed under subsection 19A(1) of the Act (pre-application mediation) may be in accordance with Form 68. A new Form 68 is included in Schedule 1.

Order 25A Rule 3 provides that after a notice is filed in accordance with Form 68, the Principal Director of Mediation may, in writing, direct the parties to attend an information session.

Order 25A Rule 4 provides that the parties must, after the parties have attended an information session or, if directed by the Principal Director of Mediation, be interviewed as soon as practicable by an approved mediator to determine if the dispute is one which may be mediated.

Order 25A Rule 5 sets out the matters that the approved mediator must take into account in determining if the dispute may be mediated. These include, the degree of equality (or otherwise)in bargaining power of the parties, the risk of child abuse (if any), the risk of family violence (if any), the emotional and psychological state of the parties, whether one of the parties may be using the mediation option to gain delay or some other advantage, and any other matter relevant to the proposed mediation.

Order 25A Rule 6 provides that if the approved mediator decides teat the dispute is one that may not be mediated, the approved mediator must immediately inform the Principal Director of Mediation of the decision and as soon as practicable inform the parties in writing of the decision and of other alternative dispute resolution procedures available. Subrule 2 provides that the Principal Director of Mediation may review a decision of an approved mediator of his or her own motion and under subrule 3 must review a decision if one of the parties so requests.

Order 25A Rule 7 provides that if the approved mediator decides that the dispute can be mediated then the approved mediator must advise the Principal Director of Mediation of the decision and the Principal Director of Mediation must then appoint an approved mediator or mediators and fix a date and time for the first conference.

Division 3 - Mediation Ordered By The Court

Order 25A Rule 8 provides that when there are pending proceedings, an application for an order referring a matter for mediation under s19B may be made in accordance with Form B or orally on the return day of any other application.

Order 25A Rule 9 provides that if an order is made under section 195 of the Act referring the matter for mediation, the dispute must be treated as one that may be mediated in accordance with Rule 7, and the proceedings must be adjourned to a date not more than 3 months after the date of the order or another date fixed by the court.

Division 4 - General

Order 25A Rule 10 provides that the conference must be conducted "as a decision making process in which the approved mediator assists the parties by facilitating discussion between them" so that the parties may communicate with each other regarding the matters in dispute, find satisfactory solutions which are fair to each of the parties and the children, and to reach agreement on matters in dispute.

Paragraph 10(1)(b) enables the Principal Director of Mediation to give general directions as to the conduct of mediation conferences. Subrule 2 provides that an approved mediator may direct any of the parties to prepare or produce any documents that the mediator considers necessary or appropriate.

Order 25A Rule 11 provides that a party who attends a mediation conference may be accompanied by one or more legal representatives.

Order 25A Rule 12 places an obligation on the mediator to advise parties that they should seek legal advice as to their rights duties and obligations in respect of the dispute and the mediation. The parties must be advised at commencement of the mediation, at any other time during the mediation if the mediator considers it appropriate, and at the conclusion of the mediation before an agreement becomes legally binding.

Order 25A Rule 13 provides that if a party does not attend a mediation conference, the approved mediator must, after considering any reasons for non attendance, either appoint a date and a time for a further conference or terminate the mediation and, as soon as practicable, notify the parties in writing of the other alternative dispute resolution procedures available.

Order 25A Rule 14 sets out the options available to a mediator if the mediator considers the mediation should not proceed. These include adjourning the mediation, referring one or more of the parties for confidential counselling under s62(1), giving directions to assist further mediation or terminating the mediation.

Order 25A Rule 15 provides that the approved mediator must immediately report to the Principal Director of Mediation the fact that mediation is complete or that one of the parties does not wish to continue the mediation or has terminated the mediation.

Order 25A Rule 16 sets out the action to be taken once mediation is completed. There are different results depending on whether the matter was brought by an application where there no proceedings (s19A) and those where mediation has been ordered by the court with the consent of the parties under s19B of the Act.

Subrules 1 and 2 provide that if the mediation was commenced under s.19A of the Act and a report is made by the approved mediator under Rule 15 and all of the matters in dispute have been resolved, the Principal Director of Mediation must advise the Registrar of the filing Registry in writing that the matters in dispute have been resolved. If all of the matters in dispute have not been resolved, the Principal Director of Mediation must advise the parties in writing of other alternate dispute resolution procedures available to the parties and advise the Registrar of the filing Registry in writing that some or all of the matters in dispute have not been resolved.

Subrules 3 and 4 provide that, if they are pending proceedings and the mediation was commencd by way of an order under s19B of the Act and a report has been made under Rule 15 and all of the matters in dispute have been resolved, the Principal Director of Mediation must advise the Registrar of the filing Registry in writing of that fact. If all of the matters appear not to have been resolved the Principal Director of Mediation must advise the Registrar of the filing Registry in writing of the matters in dispute that have been resolved and the matters in dispute that have not been resolved and may make a ecommendation to the Registrar whether counselling under subsection 62 (1) of the Act or a property conference under Order 24 of the Rules is desirable.

Subrule 5 requires the Principal Director of Mediation to send a copy of the advice forwarded to the Registrar of the filing Registry to each of the parties.

Order 25A Rule 17 provides that on receipt of the advice from the Principal Director of Mediation under subrules 3 & 4, and where there are pending proceedings, the Registrar must as soon as practicable fix a date and time for a direcions hearing.

Order 25A Rule 18 provides that for the purposes of determining whether there are any special circumstances under paragraph 79(9)(b) of the Act, the court may take into account whether the dispute has been submitted to mediation and whether any recommendation has been made by the Principal Director of Mediation. This provision is necessary because under s79(9)(b) a court is not able to make an order with respect to the property of the parties to a marriage unless the parties have attended an Order 24 conference car the court is satisfied that it is appropriate to make the order because of urgency or because of special circumstances.

Order 25A Rule 19 provides that parties may apply to the court for an orweer for a property conference under Order 24 even if the court finds that there are special circumstances under Rule 18 that they do not have to attend an order 24 conference.

Order 25A Rule 20 provides that if any or all matters in dispute are resolved at mediation, the approved mediator, in the presence of the parties, must set out the terms of the agreement in writing and delivery a copy of the terms to each of the parties.

Order 25A Rule 21 provides that the Chief Justice may give directions in relation to the documents of the kind referred to in subsection 19J(2) of the Act. Subsection 19J(2) of the Act provides that the Ruses of Court must provide for persons who propose to institute proceedings, and in appropriate cases their spouses and other interested persons, to be given a document setting out the particulars of any mediation and arbitration facilities available in the Family Court and elsewhere. The document must be given to an applicant by a solicitor before the filing of an application instituting proceedings. Where an applicant personally files an application the document is to be given by an officer of the court.

Subrule 4 provides that where any sealed copy of an application instituting proceedings is served on a respondent in Australia, the respondent must be given a copy of the document referred to above. Subrule 5 provides that a solicitor who gives an applicant a document in accordance with the above subrules must certify that fact as required in Form 7 or 12 as the case may be. Both Forms 7 and 12 are amended accordingly in Schedule 1. Subrule 6 provides that a person who serves an application on a respondent must depose to the compliance with subrule 4 in the affidavit evidencing service.

Rule 4 Schedule 1 Forms

Rule 4.1 omits the previous form of declaration by a solicitor in Form 7 and substitutes a new declaration which refers to the provision of documents under Order 25 rule 21 of the Family Law Rules.

Rule 4.2 omits the previous form of declaration by a solicitor in Form 12 and substitutes a new declaration which refers to the provision of documents under Order 25A Rule 21 of the Family Law Rules.

Rule 4.3 adds a new Form 68 - Notice Seeking Mediation (refer to new Order 25A Rule 2).