Marino Law | Gold Coast Law Firm

Family law mediation has failed. What next?

MediationWhile there are limited exceptions, Mediation in family law disputes is compulsory prior to seeking relief from the Court. In many cases Mediation does assist parties to resolve dispute, but what about those cases where Mediation fails or serves only to resolve some aspects of the dispute?

In this case parties will be issued with a certificate (s60I Certificate) by the Mediator and there is little option but to commence proceedings in either the Federal Circuit Court or the Family Court. The nature of the dispute will determine the Court in which an Initiating Application should properly be filed. The same care and attention should be given when preparing documents to commence proceedings in either Court.

Proper preparation for court proceedings is vitally important, particularly with respect to the following:

Drafting appropriate and comprehensive Orders to be sought in your Initiating Application, including both Final and Interim Orders.

  • An Initiating Application for Final Orders is the Application that commences your proceedings. This Application must set out the Orders that you seek, including Interim Orders, and should set out all causes of action that can be disposed of in the same case, ie Parenting Orders, Property Orders and Maintenance Orders.
  • Care should be taken to ensure that the Orders sought:
  1. clearly set out the obligation of the party/parties in the order with specificity;
  2. are capable of being made and enforced;
  • are not inconsistent with each other;
  1. are supported by the available evidence; and
  2. most importantly, are likely to be made by the court upon assessment of the evidence and the facts of the case.
  • Care must be given to the drafting of both Interim and Final Orders as this may affect the success of the Application.

Drafting relevant, concise and admissible evidence in support of an Application.

Evidence is filed in the form of Affidavit. When preparing Affidavit evidence care should be taken to:

  • Ensure that the evidence supports the Orders sought in the Application;
  • Ensure that the evidence is clear, concise and addresses the relevant criteria the court is required to take into consideration when determining the particular Application;
  • Ensure that the best evidence is contained in the Affidavit and is supported, where possible, with independent evidence. This is particularly important in Interim Applications given that there is no cross-examination in interim proceedings.

Ensuring that the evidence drafted stands up to objection.

Whilst it is always preferable that the evidence contained in your Affidavit complies with the rules of evidence, more often than not objections are not taken to evidence filed in interim proceedings.

Unlike evidence filed in interim proceedings, evidence filed in final proceedings must withstand objection, particularly in financial proceedings.

Objections can be made for a number of reasons, but are most commonly based on hearsay, opinion, relevance and/or submission.

Ultimately, when preparing a matter for hearing, whether it be interim or final, care and time should be taken when drafting an Affidavit and having the witness swear/affirm the Affidavit as any flaws, errors, inaccuracies or the like will become evident during the course of any hearing, either as a result of an objection taken or when the deponent of the Affidavit is cross-examined.

Ensuring that the evidence filed in your case adequately addresses the matters that the Court is required to consider depending on the relief sought.

Most importantly, your evidence must be relevant to the issues in dispute and matters the Court is required to take into consideration in determining the proceedings.

The consequences of attempting the above without a suitably experienced family lawyer can be significant.  Our Family Law Accredited Specialist led team of experienced family lawyers can assist with all aspects of your family law requirements.  Contact us today.


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