Event Report: Court-Based Dispute Resolution Webinar
Date: 26 April 2021 Time: 1:00 PM – 2:30 PM AEST Venue: YouTube Live/ ZOOM Speaker: Anne-Marie Rice
About the Speaker:
Executive Director Dispute Resolution
National Co-Ordinating Registrar – Northern Region
Anne-Marie is a problem solver, peace maker and educator having honed her technical and negotiation skills over the last 20 years and in the most highly charged of legal fields – family law.
Anne-Marie is a highly sought after mediator and trainer and is recognised by her peers as one of the best in her field. She is currently a Senior Registrar and the Executive Director of Dispute Resolution at the Family Court of Australia and the Federal Circuit Court of Australia.
Anne-Marie adopts a philosophy that “conflict can be resolved without combat” and her acceptance speech after being named the 2018 WLAQ Leneen Forde AC Woman Lawyer of the Year, in which she spoke of the exhaustion of an aggressive approach to legal practice, became an industry and social media sensation.
Anne-Marie brings to her engaging and thought provoking presentations, and learnings from psychology, neuroscience and mediation to challenge the traditional legal response to conflict, including in a court context.
On 26 April 2021, the Victorian Family Law Pathways Network – Greater Melbourne hosted a webinar with Anne-Marie Rice titled ‘Dispute Resolution Events in the Family Court of Australia and the Federal Circuit Court of Australia: What every practitioner needs to know’. Family law practitioners were invited to further their understanding of Court-Based Dispute Resolution and the new opportunities for dispute resolution in parenting matters in court.
The cornerstone of Court-Based Dispute Resolution is that "Dispute Resolution is not a single event. It’s a process. It’s our job." Anne-Marie asserts that the goal of practitioners ought to be to achieve a safe, sound and lasting resolution by narrowing the ambit of dispute. This means stepping away from the adversarial nature of traditional court processes by reducing conflict and finding even-incremental areas of common ground and opportunities for compromise.
Registrar Focus and Impact:
Registrars are at the forefront of the increased number of Court-based resolution events such as Conciliation Conferences, Case Assessment Conferences and Direction’s Hearings. Their role is to move matters to resolution as quickly and safely as possible and to reserve judicial resources for when determination is absolutely necessary. Registrar events are enormously helpful where parties, per Court expectations, are ready and willing to bring the problem-solving pathway and merely need the Court’s assistance to bring the other party to the negotiation table. That is, by identifying in advance all of the opportunities for and information that is required at dispute resolution events.
Nationally, around 75% of matters that come through the Discrete Property List and PPP500 are being finalised without the need for judicial intervention. Moreover, Conciliation Conferences that flow from these events are significantly more likely to involve focussed, resourced and prepared parties, leading to increased prospect of resolution.
New opportunities for dispute resolution in parenting matters in court and what is expected of parties and legal representatives:
In October 2020, the Court began offering a limited number of court-based family dispute resolution conferences. In order to participate, the Family and the Federal Circuit Courts made orders pursuant to s.13C (empowers Courts to refer parties to family services).
Family Dispute Resolution (FDR) events:
are to be conducted with a Registrar and Family Consultant,
have tripled in frequency in 2021,
are conducted online due to COVID-19, and
are consistent nationally.
Registrars have been trained in FDR and those who conduct these events hold the relevant delegation. Family Consultants are appointed in these conferences to the role of family counsellor, so that all communications are afforded the necessary confidentiality.
1. S.13C order:
Made by a Judge or Registrar in either the Family Court or Federal Circuit Court where deemed safe and appropriate.
Does not expire with the issuing of a s.60i certificate or commencement of proceedings.
Clearly specifies the next steps, expectations of parties on legal representatives and confidentiality.
2. Client Preparation – the role of the practitioner:
The only additional documentation is the parenting questionnaire, which contains the parties’ practical life details (e.g. distance between home and an extracurricular activity) that often get lost in pursuit of a legal position.
This stage also involves preparing clients for questions to move towards resolution and improving the situation for the children, rather than what has contributed to the entrenched conflict.
No findings of fact, nor orders can be made.
The skills and knowledge of the Family Consultant are crucial at unlocking thought processes. The Family Consultant will have no prior involvement in the matter – they will not be the same Family Consultant who prepared the s.11F Memo or Family Report and will not meet the children involved. They will, however, have access to any previous report or memo available on the file.
Anne-Marie asks practitioners to: Put down your sword and shield. Focus on problem-solving – be optimistic and open to incremental steps in the right direction.
3. Part 1:
This is the first formal stage and involves a 45-minute confidential telephone call with the Registrar who will be conducting a conference with the parties and their legal representatives.
It is an opportunity for Registrar to speak primarily to the parties about what FDR is trying to achieve.
The Registrar retains discretion to terminate.
4. Part 2:
Mostly entails a full day.
Registrar has delegated judicial power and is able to give clear indication of what litigation looks like beyond these events.
Capture the parties’ agreements as safe, binding agreements.
The Registrar must be satisfied that the orders are in the best interests of the children.
Practitioners ought to consider where it is appropriate to continue interim events as opposed to reopening issues.
Practitioners also ought to be open to compromise and consider wording draft orders in a way that is easier for the other party to embrace.
Q&A: 1. Is there capacity to adjourn?
The court will consider adjournments in accordance with how it does with all other court events.
2. How is client fatigue handled with such a long Part 2? How do you ensure clients aren’t just ‘agreeing’ to ‘get out of the room’?
This would be left to the discretion of the Registrar and Family Consultant. There is no one-size-fits-all approach. With regards to parties agreeing to just get out of the room, agreements still require the Registrar’s satisfaction and they are not hamstrung by a bad or risky arrangement.
3. Why can’t the Family Consultant who has done the report also conduct the FDR?
It is to be a different Family Consultant because the reports being commissioned for events are very distinct from the FDR event. However if FDR is made early, it may happen to be that they are using their forensic lens to ask parents questions and encourage thought, whilst refraining from making conclusions about what might be in the child’s best interests.