Genuine Steps in Family Law Matters

In family law matters, particularly those involving disputes, the Australian legal system encourages parties to take “genuine steps” to resolve their issues before resorting to litigation. This approach aims to reduce the emotional and financial burden on families and the court system. The concept of genuine steps is enshrined in the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

What Are Genuine Steps?

Genuine steps refer to actions taken by parties to resolve their disputes through negotiation, mediation, or other forms of alternative dispute resolution (ADR) before filing an application in court. These steps are intended to encourage parties to communicate openly and work collaboratively to reach an agreement without the need for judicial intervention.

The Family Law Act 1975 (Cth) sets out the legal framework for family law matters in Australia. Section 60I of the Act requires parties to attempt family dispute resolution (FDR) before applying to the court for a parenting order, except in certain circumstances such as cases involving family violence or child abuse.

Steps to take are as follows:-

1. Family Dispute Resolution (FDR)

FDR is a mandatory step in most family law matters involving children. It involves a neutral third party, known as a family dispute resolution practitioner, who helps the parties discuss their issues and explore possible solutions. If an agreement is reached, it can be formalised through a parenting plan or consent orders.

2. Negotiation

Parties are encouraged to engage in direct negotiations to resolve their disputes. This can be done through informal discussions, correspondence, or with the assistance of legal representatives. The goal is to reach a mutually acceptable agreement without the need for court intervention.

3. Mediation

Mediation is another form of ADR where a neutral mediator assists the parties in negotiating a resolution. Unlike FDR, mediation can be used for both parenting and property matters. The mediator facilitates communication and helps the parties identify their interests and options for settlement.

4. Collaborative Law

Collaborative law is a process where both parties and their lawyers commit to resolving the dispute without going to court. The parties work together in a series of meetings to negotiate an agreement. If the process breaks down, the lawyers must withdraw, and the parties must seek new legal representation for litigation.

Exceptions to Genuine Steps

There are certain circumstances where parties are not required to take genuine steps before filing an application in court. These include:

• Cases involving family violence or child abuse;
• Urgent matters where immediate court intervention is necessary;
• Situations where one party is unable to participate in FDR due to incapacity or other valid reasons.

Consequences of Not Taking Genuine Steps

Failing to take genuine steps can have significant consequences. The court may:

• Adjourn the proceedings to allow the parties to attempt ADR;
• Order the non-complying party to pay the other party’s legal costs;
• Consider the lack of genuine steps when making decisions about the case.

Taking genuine steps in family law matters is crucial for resolving disputes amicably and efficiently. By engaging in FDR, negotiation, mediation, or collaborative law, parties can minimise the emotional and financial impact of their separation and focus on achieving the best outcomes for their families. It is always advisable to seek legal advice to understand the specific requirements and options available in your situation.

If this article has created questions about your divorce proceedings or if you are considering separating from your spouse, speak with one of our experienced team of Soilcitors on 8525 2700 or click here to request an appointment with one of our Family Law Solicitors today. Our Family Law team consists of 5 experienced Solicitors including Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward and Kirstin Attard.

Article by Nikita Ward
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