Gray and Gray - [2012] FMCAfam 657

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRAY & GRAY

[2012] FMCAfam 657

FAMILY LAW – Procedural – parties attend mediation – mediation initiative pursuant to a Family Law Settlement Mediation Service arranged by the New South Wales Law Society and New South Wales Bar Association – jurisdiction to refer to a Family Dispute Resolution Practitioner for mediation – vacation of hearing date to assist mediation to occur.

Family Law Act 1975 ss.10 & 38
Federal Magistrates Act 1999 ss.93 & 115

Applicant:

MR GRAY

Respondent:

MS GRAY

File Number:

SYC 5252 of 2010

Judgment of:

Kemp FM

Hearing date:

21 June 2012

Date of Last Submission:

21 June 2012

Delivered at:

Sydney

Delivered on:

21 June 2012

REPRESENTATION

Solicitors for the Applicant:

Kyle Family Lawyers

Solicitors for the Respondent:

Hamish Cumming Lawyers and mentioning by consent on behalf of the solicitors for the applicant

ORDERS

The hearing dates of 30 & 31 August 2012 are vacated.
The matter be adjourned to 11 September 2012 at 9.15am for mention.
The parties attend mediation in accordance with the Family Law Settlement mediation service with a Family Dispute Resolution Practitioner, as agreed by the parties or failing agreement, as appointed by the President of the Law Society of New South Wales.
(a)The parties shall attend the Family Law Settlement mediation service on a date, or dates, to be fixed.
(b)The parties shall prepare a joint balance sheet as follows:
·    Within 14 days the applicant is to prepare a draft balance sheet in the form available from the Family Court of Australia website by completing all items and values asserted by the applicant and send the draft balance sheet to the respondent(s):
·   Within 14 days after receiving the balance sheet the respondent is to add the respondent’s estimated values for all items prepared by the applicant, add any items to the balance sheet the respondent asserts have been omitted from the balance sheet and assert values for those items, complete the notes relating to all disputed items and all disputed values for items, and return the draft balance sheet to the applicant;
·   Within 7 days of the applicant receiving the amended balance sheet, the applicant is to add the applicant’s estimated values for all items added to the draft balance sheet by the respondent, complete the notes relating to all disputed items and all disputed values for items and file the balance sheet with the Court, forward a copy of the Balance Sheet to the mediator nominated pursuant to Order 4 and serve copies on all other parties.
(c)Not less than 14 days before the date appointed for the mediation each party shall send to the other and to the nominated mediator an Outline of Case Document setting out:
(i)the party’s contention as to contribution based entitlements and the significant factors relied on,
(ii)the party’s contention as to any adjustment sought pursuant to s.75(2) or s.90SF(3) and the factors in the relevant section relied on,
(iii)a draft of the order sought to give effect to the entitlement asserted and a schedule setting out the effect of the order sought.
(d)The parties shall enter into an agreement to mediate with the mediator based upon that mediator’s standard agreement and in the event of disagreement that the parties and the mediator have liberty to apply.
(e)The parties shall at least 7 days before the date appointed for the mediation supply to the mediator and to the other party all documents requested by the mediator to be provided to the mediator and to the other party.
(f)Each party shall pay to the Law Society of NSW (in respect of the appointed mediation arranged by that service):
(i)within 21 days of the nomination of the mediator, the sum of $990 being one half of the costs and administrative fees for the mediation (“the costs and fees”); and
(ii)within 21 days of a receipt of a request for payment from the Law Society of NSW, one half of any additional moneys for the hire of rooms for the mediation (if applicable)

It is requested that:

(g)The Associate forthwith
(i)forward a copy of these orders to the nominee of the President of the Law Society of NSW (“the Law Society”) and to the Dispute Resolution Legal Officer (“the DRLO”), and
(ii)provide to the Law Society and to the DRLO the contact details contained in the Notice of Address for Service of each party.

(h)The Law Society nominate a mediator (“the mediator”) to conduct the mediation on the basis that that mediator is a Family Dispute Resolution Practitioner.
(i)The mediator contact the parties to appoint a date, time and venue for the mediation and advise the DRLO of the same.
(j)The DRLO inform the Court of the date of mediation.

IT IS NOTED that publication of this judgment under the pseudonym Gray & Gray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5252 of 2010

MR GRAY

Applicant

And

MS GRAY

Respondent

REASONS FOR JUDGMENT

By way of background, the parties who are involved in a property dispute had been previously provided by the Court with specific details concerning the proposed Family Law Settlement Mediation Service, through the assistance of both the New South Wales Law Society and the New South Wales Bar Association. The specific details included proposed draft orders and correspondence which explained the mediation initiative and asked the parties to consider taking up that opportunity prior to a call-over date of 21 June 2012 (being today) and if the parties did so, orders could be made in Chambers and the call-over date vacated.
The Court identified this matter as an appropriate matter for mediation.
Mr Cumming, for the respondent, who appears today mentioned the matter by consent for the applicant, to oppose an order that the proceedings be referred out to mediation.
The parties did not voluntarily take up the mediation opportunity but sought to argue that the Court had no jurisdiction to order them to mediation and further, that they should not, in any event, be required to mediate as they had waited since 22 September 2011 for a hearing as that was the last date when the matter was before the Court and the proceedings had been then fixed for a hearing on 30 & 31 October 2012. The parties asserted that they had not settled at a conciliation conference and that the mediation initiative would involve them in additional expense.
There was ample opportunity for the applicant and the respondent to put before the Court any material of a financial nature which would impact on the Court’s decision as to whether to refer or not. The opportunity was not taken up by the parties to put such financial material before the Court. A simple assertion was made that it was an expensive course to send the parties out to mediation. It is an expensive course to conduct a final hearing.
The Court has available to it limited resources. Those limited resources are the judicial hearing dates available to it. The Court vacated the hearing dates of 30 and 31 October 2012.
The Court indicated to Mr Cumming that it did not need to give reasons for its decision to vacate the hearing date. Nevertheless, in these supplementary reasons, the Court amplifies that point as set out below.
The fixing of a hearing date is entirely within the unfettered discretion of the Court. A party has no right to have a hearing date on any specific day. An order vacating a hearing date does not affect a parties rights. No reasons need be given by the Court if it directs that a matter will not be heard on a specific date but will be heard either earlier or at a later time than that date or simply reserves the position of a further date to be allocated. These are all matters within the Court’s own preserve.
A party has, however, an entitlement to have his/her matter determined at law, but that is an entitlement to be considered and balanced against a range of other matters including, but not limited to:
a)The availability of a judicial officer to hear the matter;
b)The state of readiness of the matter for judicial determination;
c)The existence of other matters also awaiting judicial determination and their state of readiness;
d)The Court’s own listing procedures which involve the allocation of multiple matters for hearing on the same day and the determination of any priority as to which of those matters will actually start. If two or three matters are otherwise ready to start a hearing, the Court is not required to give reasons to any party as to which matter it proposes to hear and which matter or matters will need, therefore, to have their hearing dates vacated; and
e)The Court’s determination as to whether steps, whether procedural or other, should be attended to prior to any judicial determination. One such step, relevant here, is mediation.
The Court as said vacates the hearing dates set on the basis, that it proposes to make an order for the parties to mediate the matter as referred to below.
Mediation is defined in the Macquarie Dictionary as:
A process to bring about an agreement between parties through an independent intermediary who acts as a mediator.
Family dispute resolution has the meaning given by s.10F of the Family Law Act (“the Act”). Section 10F of the Act provides that family dispute resolution is a process other than a judicial process in which a Family Dispute Resolution Practitioner helps people affected or likely to be affected by separation or divorce to resolve some or all of their disputes with each other, and which practitioner is independent of all of the parties involved in the process.
Disputes are not limited to parenting and include property matters as well.
Section 10G of the Act defines a family dispute resolution practitioner as …a person accredited as such under the accreditation rules, being the regulations made under s.10A of the Act, or a person authorised to act on behalf of an organisation designated by the Minister, or a person authorised to act under s.38BD of the Act or engaged under ss.38R(1)(A) as a Family Dispute Resolution Practitioner, or a person who is authorised to act under section 93D of the Federal Magistrates Act1999 or engaged under subsection 115(1)(A) of that Act as a family dispute resolution practitioner, or a person who is authorised by a Family Court of a state to act as a Family Dispute Resolution Practitioner.
Therefore, a Family Dispute Resolution Practitioner has to be suitably accredited and bound by requirements imposed by regulation.
Under s.13C of the Act the Court may, of its own motion, when exercising jurisdiction in proceedings under this Act, at any stage in the proceeding make an order that the parties to the proceedings attend family dispute resolution.
These proceedings are proceedings under the Family Law Act.
The Court is satisfied that there are named persons on the mediation panel who are Family Dispute Resolution Practitioners, those persons who have professed to have expertise in financial cases and are, accordingly, suitable persons to be mediators.
The Court proposes to order the parties in these proceedings to attend family dispute resolution pursuant to s.13(C)(1)(b), and the Court suggests pursuant to s.13(C)(2) that the particular purpose for the parties attendance or participation is to mediate, with the assistance of a Family Dispute Resolution Practitioner, the specific property proceedings before the Court.
For the purposes of the mediation initiative, the Court will direct that if the parties are unable to agree on a named Family Dispute Resolution Practitioner from the names of such practitioners on the panel prepared for this Initiative, then the parties are to do all things to have the President of the New South Wales Law Society appoint one of those named persons, provided that such a person is a Family Dispute Resolution Practitioner.
The Court having determined that it had jurisdiction to refer the matter out to mediation considered that that should occur and given the parties submissions that there was opposition to that course based, (largely it would appear, on the availability to the parties of an allocated hearing date), vacated that hearing date given the proximity of a proposed mediation to that date and the potential for that date, if it was to be retained, to negatively impact on the parties’ bona fide focus on achieving a resolution through mediation.
In the circumstances, if the parties are able to mediate the matter to successful conclusion then the dates of 30 & 31 October 2012 that were otherwise available to this matter would be available to other parties who would be able to, potentially, take those hearing dates.
In the circumstances of this matter, the Court proposes to, as said, vacate the hearing dates. It will, however, give a mention date in September 2012.
The matter will be listed for mention on 11 September 2012 at 9.15am.
If the parties are not able to resolve the matter at mediation, the Court on that occasion will consider the allocation of a fresh hearing date to those parties, and that date may be given very quickly.

ORDERS DELIVERED

The Court makes orders as set out above, largely in accordance with the pro-forma order previously circulated to the parties, save that the parties attend such mediation with a Family Dispute Resolution Practitioner as mediator, as agreed by the parties or failing agreement, as appointed by the President of the Law Society of New South Wales.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Kemp FM

Associate:

Date: 2 July 2012