Date: 11 November 2021 Time: 4:30 PM – 5:30 PM AEDT Venue: ZOOM Speakers: Alan Hebb & Ben Smith
About the Presenters:
Alan Hebb was a member of the Victorian Bar for over 20 years practicing exclusively in the last 10 years in mediation and FDR. He has been an FDRP since 2009 and senior FDRP at Sunshine FRC since 2018. He has a special interest in Legally Assisted FDR.
Ben Smith has been working exclusively in family law since 2000. He was admitted to practice in 2006 and in 2011, he became a Law Institute of Victoria Accredited Specialist in Family Law. Ben sits on the Lawyers Panel at Relationships Australia Victoria. The RAV Lawyers Panel comprises lawyers who specialise in family law and have experience in family dispute resolution.
On 11 November 2021, the Family Law Pathways Network invited members of the Sunshine Legal Referral List and the FLPN ‘Western’ Collaborative Group to attend their inaugural cross sectoral networking and educational event. The event topic was a discussion on the changes brought about by the creation of the ‘Federal Circuit and Family Court of Australia’. In this presentation, Alan focused on what the changes mean for Dispute Resolution and Ben looked at the changes from a lawyer’s perspective.
Introduction to the Sunshine Legal Referral List by Alan Hebb The Referral List has four characteristics/essential features:
Members of the list committed to assisting parties to resolving family dispute with FDR if possible and appropriate.
Members are open to assisting clients who are in need.
Members are individuals, not firms (as the above two commitments can only be taken upon as individuals).
Members are open to and attempt to collaborate with and work with Sunshine FRC.
Ben Smith As a lawyer, Ben explained how he is finding the application of the new rules established by the Federal Circuit and Family Law Court of Australia. Ben looked at the overarching purpose of the changes in the new rules under 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Pursuant to this purpose, there is an emphasis on lawyers to try to resolve disputes via FDR without having to commence proceedings, and even after proceedings have commenced, to funnel them through the FDR process. There are certain cases where the pre action procedure of engaging FDR is not going to be appropriate, however, assuming that the matter does not meet these criteria, parties are required to engage in FDR.
There is now a greater emphasis on discovery and exchange of documents. In parenting matters, there will be an exchange of documents regarding children.
The Certificate of Dispute Resolution looks at conduct of parties and whether they have attended FDR and made a genuine effort to resolve the matter in FDR (the certificate has recently been updated since it was initially launched). The Court has indicated it is more likely that cost orders will be made for noncompliance, including costs for the lawyer that cannot be passed onto the client. However even if no cost order is made, there is a prospect of commencing proceedings and the court referring to FDR upon commencement, which entails additional costs anyway.
If pre filing FDR is unsuccessful, and lawyer assisted negotiation breaks down, there is now a requirement for parties to give notice to the other about a potential application. The party intending to issue proceedings is required to write to the other party and identify issues in dispute, orders sought, and make a genuine offer to resolve issues. The Respondent is also required to fully engage and, only then, can parties proceed with filing an application.
Speaking to his own experience as a practitioner, Ben indicated that the amount of material required to bring about an application has increased. This has made the process much more time consuming and has increased parties’ costs, raising concerns about whether the rule changes actually make access to justice more cost prohibitive. Ben has found that the forms are also quite repetitive in nature.
Even post filing, there is a push to engage in FDR. Judicial registrars are a point of contact that triage matters and make a determination as to whether the matter is to be referred to internal or external dispute resolution.
Ben’s experience has been that these changes have been much more focused on the perspective of having parties, lawyers and FDRPs working more collaboratively to resolve matters. There are still considerable delays through the courts, so what lies beyond FDRP is a slow process, and entails additional costs to go through court proceedings. Overall, Ben sees it as a good measure to speed up proceedings and give parties more control.
Alan spoke to the changes from the perspective of an FDRP. There are two main ways that the rules impact FDRPs:
They create an awareness that FDRP is going to be first port of call for anyone ending up in Court. Clients should change their attitude to the mediation they are in prior to filing as a result.
Matters are being referred back to FDR:
There are a lot of unknowns to this end because there has been very little/no consultation with the FDR sector prior to the changes being brought about. Alan believes the reason for the of lack of consultation is due to the Court’s assumption that post filing mediation FDR is much the same as pre filing FDR. When matters come to FDR, there is an assumption that they can simply be incorporated into the mainstream case flow. In actuality, the two mediation models are very different. Alan discussed two of these differences below.
Firstly, is the starting point of mediation:
Post filing, the starting point is very different to pre filing as the client’s position is much more set, as they have spent time and money with lawyers building a position. The first thing mediators will invite them to do is walk back from their positions and find new positions to negotiate. Pre filing mediation starts with – “tell us about the children”, i.e. there is an overt, conscious emphasis that they are acting in the best interests of child. This is something that is never asked in post filing mediation, which starts with the party’s position, and which may cause issues with losing sight of what FDRPs are here for.
The second difference is the involvement of lawyers:
Pre filing, the lawyer is to assist, guide and advise the client – not to act on their behalf or speak on their behalf (back-seat approach). In contrast, post filing, clients have engaged the lawyer to act and speak on their behalf (front-seat approach). Historically, the protocol has changed since FRCs began as lawyer free zones (then, ADR).
Relationships Australia has set up a working group to look at how to best respond to concerns about how post filing FDR will be coordinated. Whilst decisions are not yet finalized, the general indication is that cases referred from Court will not form part of mainstream FRC. Instead, there will be a separate entry point. There will be a separate select group of FDRPs (currently working in pre filing and who are more experienced and legally trained) allocated to working in the post filing space. Fees will also likely be different to pre filing matters as property is not going to fit in the pre FRC protocol, and therefore do not attract subsidies. Questions
1. If someone comes to a lawyer with a Certificate A and the other party has not responded/refused to participate in FDR, would you file immediately or tell them they have to go to FDR?
Ben invites the client to FDR again, knowing they are unlikely to engage. However, there is a tactical component where the client wants to be the party saying you were trying to resolve amicably via FDR.
2. Why is post filing made compulsory? It was always an option.
Ben: There were originally no consequences of issuing applications early on and not complying with pre action procedures or scrutinizing of what efforts were made by parties in pre action FDR. Now there are consequences.
Alan: If you have faith in pre filing FDR, the matter probably would not be referred back a second time, but pre and post filing FDR are different. The pre-filing model is good but does not satisfy all circumstances. Sometimes the pressure of the situation of post filing brings a different energy and motivation to settle.