Options on the breakdown of a marriage or de facto relationship

Contributed by Heinrich Moser and current to 1 September 2005

These days there is a strong emphasis on parties to a marriage or de facto relationship finding their own solutions to any issues arising from the break up of their relationship.

There are many counselling and advice services available.

There is also now a requirement for parties to engage in Primary Dispute Resolution (“PDR”) such as mediation or arbitration before going to Court, unless the matter is urgent or there is clearly no prospect of PDR bringing about a resolution.

WHAT LAW APPLIES

Where a dispute concerning property arises between parties who are or have been married to each other, or if it concerns children of parties who are or have been married, the Commonwealth Family Law Act 1975 applies.

Where the dispute relates to children of parties who are not or have not been married to each other, or where it relates to property of a de facto relationship that ended on or after 1 December 2002, the WA Family Court Act 1997 applies.

Although different acts apply, in reality the Family Court Act mirrors the Family Law Act in almost all areas, at times word for word, and the same principles apply.

In child support disputes the Commonwealth Child Support legislation enacted in 1989 applies, including those disputes relating to children whose parents are not or have not been married.

The only exceptions are in respect of children where the relationship of the parents broke down before 1 October 1989, or who are seeking support from either or both their parents after turning 18. In those cases, the Family Law Act applies to children of married parents and the Family Court Act applies to children whose parents are not or have not been married to each other.

Issues of domestic violence can be dealt with under both the Family Law Act, the Family Court Act but are usually resolved under the Restraining Orders Act 1997 (WA): see further FAMILY AND DOMESTIC VIOLENCE .

Disputes concerning property of parties to a de facto relationship that ended before 1 December 2002 are usually resolved using long-standing principles of trust and equity.

PDR

There are a number of methods of PDR. The main ones are Mediation and Arbitration, but it is possible to combine the two. Mediation can be used for both child welfare and property disputes. Arbitration can only be used for property disputes.

PDR now forms part of the compulsory Pre-Action Procedures (see under ‘PROCEDURES’ below).

Mediation

Mediation is a formal settlement conference conducted on a “without prejudice“ basis. Many Courts now conduct compulsory settlement conferences which carry different names (conciliation, pre-trial, mediation). All these are essentially mediations as they involve the assistance of a third party to achieve a settlement agreed on by both parties.

The mediator is impartial and facilitates discussion and communication.

Arbitration

Under this option a binding award is made which can be registered in the Family Court. It can be reviewed only on a question of law. The procedure can be customised to the needs of the parties.

Mediation-Arbitration (MedArb)

Under this formula, the parties at first engage in mediation. If no resolution can be achieved, the mediator then acts as arbitrator and provides an award. Even though mediation is ordinarily conducted on a without prejudice basis, the parties have to agree in advance that conducting the mediation will not disqualify the mediator from then acting as arbitrator.

Arbitration-Mediation (ArbMed)

In this model the parties first engage in arbitration and the arbitrator immediately prepares an award in summary form. This is sealed in an envelope and the parties proceed to conduct a mediation with the arbitrator. If they reach agreement in the mediation, the award remains sealed; if not, the arbitrator publishes the award which is then binding on the parties. Detailed reasons for the award are given later.

See further ALTERNATIVE DISPUTE RESOLUTION.

COURTS

In WA the Family Court of Western Australia deals with all issues arising from the breakdown of marriages and de facto relationships under the Family Law Act and the Family Court Act, except for de facto relationships that ended before 1 December 2002.

Decisions before the final hearing are usually made by the Magistrates Court (150 Terrace Road, Perth), which forms part of the Family Court of Western Australia. The Magistrates of that Court are also Registrars of the Family Court of Western Australia.

In areas outside the Perth Metropolitan Area, applications can be made to the closest Magistrates Court, but eventually these matters are transferred to the Family Court of Western Australia.

Applications under the Restraining Orders Act 1997 (WA) may be made to the closest Magistrates Court including those in the Perth Metropolitan Area, but the Family Court of Western Australia and the Magistrates Court also have jurisdiction to make orders under that Act.

Disputes concerning property of a de facto relationship that ended before 1 December 2002 are dealt with by the Supreme Court of Western Australia.

In other States, the Federal Magistrates Court also has jurisdiction in matters arising under the Family Law Act. This is not the case in WA, where all these matters are dealt with by the Family Court of Western Australia.