KEELING & KEELING
[2012] FMCAfam 733
•28 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEELING & KEELING | [2012] FMCAfam 733 |
| FAMILY LAW – Property – order for parties to attend external mediation – the meaning of “service” in s.13C(1)(c) – whether it is appropriate to order parties to participate in a particular service – power and discretion behind order for compulsory attendance at external mediation. |
| Family Law Act 1975, ss.13(1)(c), 79(9) Federal Magistrates Act 1999 Federal Magistrates Court Rules 2001 |
| Flora & Flora [2012] FamCA 493 Rakete & Rakete [2012] FamCA 267 |
| Applicant: | MR KEELING |
| Respondent: | MS KEELING |
| File Number: | SYC 5869 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 28 June 2012 |
| Date of Last Submission: | 28 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Willis & Bowring Solicitors |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Peter Marr & Associates |
ORDERS
Subject to paragraph two (2) herein, the parties attend a mediation with a Family Dispute Resolution Practitioner (“FDRP”) organised through the Family Law Settlement mediation service (“the Service”) on a date, or dates, to be fixed.
In the event that the Service cannot allocate the matter to a mediator who is also an FDRP, the mediation not proceed.
The parties prepare a joint balance sheet as follows:
(a)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):
(b)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;
(c)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 paragraph nine (9) herein and serve copies on all other parties.
Not less than 14 days before the date appointed for the mediation each party send to the other and to the nominated mediator an Outline of Case Document setting out:
(a)the party’s contention as to contribution based entitlements and the significant factors relied on;
(b)the party’s contention as to any adjustment sought pursuant to s75(2) or s90SF(3) and the factors in the relevant section relied on; and
(c)a draft of the order sought to give effect to the entitlement asserted and a schedule setting out the effect of the order sought.
The parties enter into an agreement to mediate with the nominated mediator based upon that mediator’s standard agreement.
The parties, at least 7 days before the date appointed for the mediation, supply to the nominated mediator and to the other party all documents requested by the mediator to be provided to the mediator and to the other party.
Each party pay to the Law Society of NSW (in respect of the appointed mediation arranged by that service):
(a)Prior to the nomination of the mediator pursuant to paragraph nine (9) herein below, the sum of $990.00 being one half of the costs and administrative fees for the mediation (“the costs and fees”); and
(b)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).
AND THE COURT REQUESTS THAT:
The Associate forthwith:
(a)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
(b)provide to the Law Society and to the DRLO the contact details contained in the Notice of Address for Service of each party.
The Law Society nominate a mediator (“the nominated mediator”) to conduct the mediation.
The nominated mediator contact the parties to appoint a date, time and venue for the mediation and advise the DRLO of the same.
The Law Society arrange for the mediation to occur in late 2012 or as otherwise arranged between the parties and the nominated mediator, but such mediation is to occur prior to the mention hearing in this Court on 10 December 2012.
The DRLO inform the Court of the date of mediation.
AND THE COURT NOTES THAT:
(A)While the Applicant consented to the parties participating in the Family Law Settlement Service the Respondent did not.
(B)These orders were made by the Court following a hearing today.
(C)In the event that financial issues between the parties are resolved at the mediation the parties have leave to approach Chambers with a final minute of Consent Orders with an appropriate cover letter to be considered by the Court and, if approved, those Orders will be made as well as an Order dismissing all extant applications and vacating any future listing dates before this Court.
(D)In the event that the outstanding financial issues between the parties are not resolved at the mediation the matter will remain listed as already allocated by the Court, that is, as follows:
a.for mention hearing on 10 December 2012 at 11:30am; and
b.for Final Hearing on 7 March 2013 with an estimated hearing time of no longer than two (2) days;
FURTHER NOTING THAT in the event that earlier Final Hearing dates than those allocated become available, priority may be given to those matters which have participated in private mediation in the re-allocation of Final Hearing dates.
IT IS NOTED that publication of this judgment under the pseudonym Keeling & Keeling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5869 of 2010
| MR KEELING |
Applicant
And
| MS KEELING |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and can be settled when time allows or if specifically requested.
This decision relates to a discrete issue which has arisen in the financial proceedings between MR KEELING (“the husband”) and MS KEELING (“the wife”). The matter involves a dispute over property and spousal maintenance only, though I note that the parties have three adult children.
Background
By way of brief background, the parties married on (omitted) 1982, separated in June 2007 and divorced on 28 October 2010.
The husband commenced these proceedings by way of an Initiating Application filed on 24 February 2011 in the Family Court of Australia supported by an affidavit and financial statement.
The wife filed her Response on 28 April 2011 similarly supported by an affidavit and financial statement.
It would appear the parties first came before the Family Court on 3 May 2011 before Registrar Chayna for directions. On that occasion, Registrar Chayna directed the parties to attend a Conciliation Conference on 25 July 2011 and made various directions in relation to the preparation for that Conference.
On 25 July 2011, the parties duly attended that Conciliation Conference before Registrar George. Unfortunately, the parties were unable to resolve their dispute and Registrar George made orders for the matter to be listed for hearing for an estimated duration of one to two days.
On 12 December 2011, the matter was transferred to my docket in the Federal Magistrates Court by way of orders made in Chambers by Watts J.
The matter consequently came before me for the first time in my duty list on 27 February 2012. On that occasion I made orders listing the matter for final hearing and further mention on dates and times to be fixed. I also directed the parties to attend a further Conciliation Conference on 31 May 2012 and made various directions in relation to attending that Conference as well as an order for each party to file updated financial statements.
For completeness, I would note that the parties were advised by letter from my Chambers dated 17 April 2012 that the matter had been listed for further mention on 10 December 2012 and for final hearing for no longer than two days commencing on 7 March 2013.
On 31 May 2012 the parties attended that further Conciliation Conference before Registrar Crawford. I would note that Mr Miller and Mr Cumming, who both appear before me today, also represented their respective clients at that Conciliation Conference. Unfortunately, the matter did not settle.
By way of correspondence dated 14 June 2012 sent to their respective legal representatives, the parties were invited to participate in a joint initiative of the Law Society of NSW, The Bar Association of NSW, The Family Court of Australia and The Federal Magistrates Court of Australia. This initiative invited the parties to attend mediation with panel members experienced in mediating in Family Law matters in an effort to resolve the matter and avoid costs necessarily associated with preparing for and running a final hearing.
Parties were given an opportunity to consent to the mediation by returning signed consent orders. In the event of no consent, the parties were required to attend a call-over on 28 June 2012.
As there was no consent forthcoming from the wife in this matter, the parties attended before me this morning, 28 June 2012. Mr Miller appeared for, and with, the husband and Mr Cumming appeared as city agent for the wife. The wife was not present at Court today.
Issues
The parties have been invited to attend the Sydney Family Law Settlement Service (“the Service”).
The husband has indicated that he wishes to avail himself of that opportunity. The wife has not agreed to attend and resists any order being made that the parties attend the Service.
The basis for the wife’s objection is two-fold:
·Firstly, she asserts that the Court does not have the power to make such an order; and
·Secondly, she submits that, should the Court be satisfied that it can make such an order, that the Court should exercise its discretion against such an outcome because the parties had the benefit of a recent Conciliation Conference.
Submissions
Each of the parties’ legal representatives presented brief oral submissions to the Court. The transcript for this morning will reflect those submissions.
In summary, and as stated, Mr Cumming for the wife submitted that the Court lacked the necessary power to either make the order for mediation or to make the parties attend before a mediator who is not a ‘family dispute resolution practitioner’ (“FDRP”). In this respect, Mr Cumming submitted that there was no way that the parties could be completely certain that the mediator who would be appointed would also be a FDRP.
In the alternative, Mr Cumming submitted that the Court should not require the parties to attend the Service given that they had also attended not one but two Conciliation Conferences while these proceedings were before the Family Court of Australia and this Court.
Mr Miller for the husband submitted that his client was willing to attend the Service and supported the Court making the appropriate order, despite the parties having recently attended a Conciliation Conference.
Law and discussion
Prior to their submissions, I indicated to the parties that the Court had only recently become aware that the issue of whether there was a power granted to the Court under the Family Law Act 1975 (“the Act”) had been considered by Watts J in Flora & Flora [2012] FamCA 493 (“Flora”), a decision which his Honour delivered ex tempore on 27 June 2012. At the time that the present matter came before me on 28 June 2012, his Honour’s decision in Flora was still being settled and was yet to be anonymised. Nevertheless, to assist, I read out to the parties the relevant paragraphs of his Honour’s decision.
Although the decision of Watts J in Flora is not necessarily binding upon this Court, given its similar context, I am satisfied that his Honour’s decision is persuasive in the instant case.
The relevant paragraphs from Flora which I read into the transcript were the following:
“2. The parties have been invited to attend the Sydney Family Law Settlement Service. The husband has indicated that he wishes to avail himself of that opportunity. The wife has not agreed to attend and resists any order being made that she attend that service. In the event that the court intends to make such an order, the wife has asked that reasons be given.
POWER TO MAKE AN ORDER THAT THE PARTIES PARTICIPATE IN THE SERVICE
3. The power to make an order that the parties participate in the service is to be found in s 13C(1)(b) and (c) Family Law Act (‘FLA’) which is contained in Part IIIB FLA. The question arises as to what s 13C(1)(c) FLA means. Section 13C(1) is in the following terms:
A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
4. In Rakete & Rakete [2012] FamCA 267, Kent J discussed this issue by way of obiter and said at paragraph 63:
Whilst the Court obviously has power to make Orders by the consent of the parties, including Orders as to mediation, I consider that it is far from clear that, absent the parties’ consent, the Court has power to order them to attend mediation, other than a mediation conducted by a ‘family dispute resolution practitioner’ within the meaning of the Act.
5. In that case, his Honour was dealing with a possibility that the parties might attend an individual mediator who may or may not be a family law dispute resolution practitioner.
6. As His Honour indicated, there can be no doubt that s 13C(1)(b) FLA gives the court power, in proceedings for alteration of property, to order the parties to the proceedings to attend family dispute resolution.
7. Family dispute resolution is defined in s 10F(a) FLA as something that is conducted by a family dispute resolution practitioner.
8. At paragraph 70 of Rakete & Rakete, Kent J said:
No specific argument was addressed to me as to whether the Court’s power to order mediation extends to a power to order the parties to attend mediation with a mediator who is not also a ‘family dispute resolution practitioner’. Whilst it may be arguable that private mediation is a ‘service’ within the meaning of s 13C(1)(c), it seems to me that if mediation is ‘family dispute resolution’ within the meaning of s 10F, it is ‘family dispute resolution’ within the meaning of s 13(1)(b) and that ‘service’ in sub-paragraph (c) must be something different, and is to be read and interpreted with the words, ‘…participate in an appropriate course, program or other service’.
9. I agree with Kent J when he said that the word ‘service’ in s 13C(1)(c) must mean something different from what is meant by ‘family dispute resolution’.
10. In my view, it must follow from a reading of s 13C(1) FLA that s 13C(1)(c) is talking about something which is not necessarily ‘family counselling’ or ‘family dispute resolution’, as those terms are defined in the FLA (s 10B FLA and s 10F FLA).
11. Private mediation can of course be provided both by persons qualified as family dispute resolution practitioners and those who do not have that qualification. ‘Family dispute resolution’ can only be provided by the former.
12. His Honour said it may be arguable that private mediation that is provided by someone who was not a family dispute resolution practitioner, is a ‘service’ within the meaning of s 13C(1)(c) FLA. This argument would interpret the word ‘service’ as meaning an act of assistance. It is fair to say, that Kent J is of the view that an interpretation of ‘service’ as meaning an act of assistance is ‘far from clear’ and I would agree that that is a grey area.
13. The word ‘service’ has a range of meanings. In the context of s 13C(1)(c) FLA, it might be argued that ‘service’ does not simply mean an act of assistance but rather something which is a system supplying a need. This latter meaning sits more easily with the other words ‘course’ and ‘program’ in s 13C(1)(c) FLA. It also sits more easily with a relevant Object in Part IIIB FLA, namely s 13A(1)(b) FLA which is in the following terms:
(b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed… [emphasis added]
14. In this case, what I am considering is ordering that the parties attend the Sydney Family Law Settlement Service which is a service being provided jointly by the Law Society of NSW (‘the Society’) and the Bar Association of NSW (‘the Association’).
15. The Society and the Association have established a mediation panel of barristers and solicitors who are experienced family law practitioners and who are willing to mediate and conciliate family law property matters. They have agreed to do so at a particular fee. The members of the panel have been selected by their respective professional bodies (the Society or the Association). The service is coordinated by the Dispute Resolution Legal Officer who is nominated by the President of the Law Society of NSW. There is a structure around what is being provided by the service. The service has at least 20 practitioners on its panel who are, in fact, qualified as family dispute resolution practitioners and the remaining practitioners are experienced family law practitioners who are also experienced in mediation.”
In summary, Watts J, after referring to the relevant provisions of the Act and to the decision of Kent J in Rakete & Rakete [2012] FamCA 267, found that the Service being offered to the parties “can be described as an ‘appropriate service’ within the meaning of s.13C(1)(c) of the Act and accordingly, there is power to order a party to that service.” His Honour then went on to say the following:
“17. In the event that I am wrong in making that finding, then the order in this case will be constructed so that the Dispute Resolution Legal Officer is requested to select a family dispute resolution practitioner to carry out the mediation and conciliation. As Justice Kent has pointed out, there can be no doubt there is power for the court to order parties to attend such a practitioner (s 13C(1)(b) FLA).”
Justice Watts then went on to consider the relevant discretion and in the case before him determined that the parties would benefit from attending the service, that the parties should each bear their own costs of so attending and thus refused the wife’s application that the husband pay her costs of participating in the Service.
Before proceeding further, I believe that there is merit in briefly considering whether there is any provision under the Federal Magistrates Act 1999 or the Federal Magistrates Court Rules 2001 that would independently underpin any referral by this Court to the Service.
Having reviewed the provisions of the Federal Magistrates Act 1999 or the Federal Magistrates Court Rules 2001, I am satisfied that relevant references therein have no application to matters governed by the Act but rather apply to the other areas of general federal law within this Court’s jurisdiction.
Consequently, having considered the reasons expressed by Watts J in Flora, I agree with his Honour’s conclusion that the legislative basis for the Court’s power to make an order that the parties attend the Service is found in s.13C(1)(c) of the Act. I am also persuaded by the argument that, in the absence of the consent of the parties, it would be appropriate for such mediation to be provided by an FDRP. Indeed, I note that, during submissions, I raised with the parties the possibility that the Court could make the referral to the Service conditional upon the appointed mediator also being an FDRP, should one or both of the parties seek to raise or otherwise agitate that issue. I also note that Watts J made such a conditional order in Flora.
Exercise of discretion
I now have to consider whether the Court should exercise its discretion to make the order sought by the husband and opposed by the wife.
The manner in which this Court must exercise its discretion in this matter is in accordance with the general principles guiding judicial exercise of discretion in the absence of a specific statutory framework. The decision of Dixon, Evatt & McTiernan JJ in the High Court of Australia case of House v R (1936) 55 CLR 499 provides a useful guide. In summary, the exercise of discretion must:
·be founded on correct legal principles;
·not be clouded by “extraneous or irrelevant matters”;
·be based on a correct view of the facts;
·take account of all material considerations; and
·not be “unreasonable or plainly unjust”.
In the present circumstances, I would only add that I think it incumbent upon this Court to exercise its discretion in a manner which would be consistent with the objects set out in reg.1.03 of the Federal Magistrates Court Rules 2001, which states:
“(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
* to operate as informally as possible
* to use streamlined processes
* to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
* avoid undue delay, expense and technicality
* consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution.”
As stated, the basis of the wife’s opposition to the exercise of the discretion was that the parties had the benefit of a recent Conciliation Conference which, the Court notes, was the second such conference.
I note that s.79(9) of the Act prevents the Family Court or the Family Court of a State (such as Western Australia) making an order under s.79 in property settlement proceedings without the parties first having attended a Conciliation Conference, unless the Court is satisfied that it would not be practicable or appropriate for one to occur. Section 79(9) of the Act states:
“(9) The Family Court, or a Family Court of a State, shall not make an order under this section in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless:
(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be;
(b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).”
Interestingly, while s.79(9) of the Act has no application to this Court, it would be unusual for property and financial matters not to have the benefit of a Conciliation Conference (or Conferences) prior to the Final Hearing. That, of course, is not relevant in the present case because the parties have had the benefit of a Conciliation Conference with Registrar George on 25 July 2011, when the matter was before the Family Court of Australia, and more recently, in this Court, before Registrar Crawford.
I also note that pre-trial mediations are commonplace in other jurisdictions, even being ordered over the objections of the parties, and often occurring in close proximity to the final hearing.
The Conciliation Conference is a facilitative process which does not automatically bind the parties to any arbitrated result and it is constrained to a period of no more than 2 hours, subject to the Registrar agreeing to extend the time. By contrast, I note that the Service proposes allowing 2 hours for reading and any necessary preliminary conference and allowing 3 hours for the mediation with extra time available should the parties negotiate for same with the mediator (as stated in the Family Law Settlement Service Information Sheet sent out to all invitees to the Service). That said, it goes without saying that the Registrars of this Court and the Family Court are well-recognised as working tirelessly to assist parties, as evidenced by a significant settlement rate at Conciliation Conferences.
Although not applicable to the facts before me, Conciliation Conferences are often ordered at an early stage in proceedings in the hope that the parties may be able to narrow the issues in dispute or resolve the matter in its entirety. Occasionally, further Conciliation Conferences are ordered at a later stage in proceedings in appropriate circumstances. Indeed, in this present case, I formed the view, following the transfer of the matter from the Family Court, that a further Conciliation Conference would be beneficial. I note that both parties have complied with Orders and directions to attend the Conciliation Conferences and the Court was not advised of any difficulties in the parties complying with their obligations in this respect.
The wife specifically raised the proximity between the recent Conciliation Conference and the referral to the Service. Whilst the Court appreciates the argument, it tends to presume that the mediation, if ordered, will occur in the short term. The Court can request that the Service arrange for the matter to be assigned a mediation date later in the year or as otherwise agreed upon with the mediator.
Finally, I note when that the matter came before me for the first time earlier in 2012, I was persuaded by the parties to list the matter for final hearing in 2013. The matter is listed for a hearing not exceeding 2 days commencing on 7 March 2013. Although the matter is listed, there is a possibility that the matter will not get reached on the day given that this Court has a practice of over-listing final hearings to ensure that resources are used appropriately given the number of filings as against the number of matters that can reach settlement prior to the final hearing or at the door of the Court. In this matter, I have confirmed to the parties that their matter is listed against another matter and that, at this stage, neither matter has priority. Regardless, it is always possible that the Court will not reach either matter if the Court is required to deal with urgent business.
Conclusion
Having considered the submissions in light of the relevant legislative provisions, I state again that I am satisfied that the Court has the necessary power to make an order referring the parties to the Service. Having considered also the respective submissions relating to the exercise of the Court’s discretion, in light of the circumstances, the Court is satisfied and finds it appropriate for the parties to participate in the Service. The Orders will require the parties to attend upon an FDRP arranged through the Service to carry out a mediation in the matter. Although unlikely, in the event that the Service is unable to identify and allocate the matter to an FDRP, then the mediation will not proceed.
There will be Orders of the Court to reflect this decision.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 27 July 2012
0
3
3