Changes to the Family Law Act 1975 (‘the Act’) require parties to comply with a number of pre action procedures prior to commencing Court proceedings. One of those steps is a requirement to attend dispute resolution. While this has been a requirement in parenting matters for many years, compulsory mediation prior to Court is new for matters involving property.
One of the cornerstones of mediation is the fact that mediation itself is strictly confidential and what is discussed during this process cannot be brought up or used at a later date. The purpose of this is to ensure that during mediation the parties feel free to express multiple options and discuss various possibilities to give matters the best chance of resolving. Without this requirement one could argue that parties to a mediation would be more guarded in their positions, and there would be fewer matters that resolve at mediation without the need of proceeding through the Courts.
In a recent matter before the Federal and Family Circuit Court the primary Judge made Orders involving parenting. In making the Orders the Judge took into consideration what occurred at a mediation between the Mother and Father. In this case, both parties were self-represented and had referred to the mediation and things that had occurred during this process in their respective affidavit material. If the parties or one of them had of been represented it is likely that objections would have been made and approved striking out all information that was deposed to in the affidavits that came from the mediation. This however, did not occur.
In making the Orders and referencing the mediation, the primary Judge indicated that the Court made an exception to the rule of not receiving and considering information about what happened at mediation. Section 10J(i) of the Act prevents anything said in the company of a Family Dispute Resolution Practitioner whilst conducting family dispute resolution from being admissible in any Court. There are some very limited exceptions, none which applied here.
The final decision was appealed, and the Orders set aside by the Division 1 Appellant Court, noting that the primary Judge erred in considering the information before him that came directly from the mediation.
The Appeal highlights that the mediation process is confidential and any decision made that references this process in the reasons for the decision is appealable and if appealed, likely to be set aside.
If you are going through a separation and about to embark on mediation, talk to one of our experienced Family Lawyers today about the process, what you can expect and how best to prepare.
