Dispute Resolution Choices for Property Settlement in Australia: Client Views on the Advantages and Disadvantages of Family Dispute Resolution and Legal Pathways

• Published date: 01 October 2021
• Author: Genevieve Heard,Andrew Bickerdike
• Date: 01 October 2021
• DOI: http://doi.org/10.1111/fcre.12565

DISPUTE RESOLUTION CHOICES FOR PROPERTY SETTLEMENT IN

AUSTRALIA: CLIENT VIEWS ON THE ADVANTAGES AND

DISADVANTAGES OF FAMILY DISPUTE RESOLUTION AND

LEGAL PATHWAYS

Genevieve Heard and Andrew Bickerdike

Although many separating Australian couples make their own arrangements for property division, evidence suggests over

40% nominate either Family Dispute Resolution (FDR), lawyers or courts as their main pathway to settlement. Whereas it is

compulsory to attempt FDR in parenting matters, this is not so for property matters. This paper examines client perspectives

on property dispute resolution methods using interviews with 112 prospective FDR clients. Some proceeded to joint FDR

and some did not, or proceeded for parenting matters only. Thematic analysis highlights the perceived benefitsand disadvan-

tages of FDR, compared to using lawyers or going to court, for property matters. We explore issues relating to the cost and

character of each process, including implications for post-separation relationships. Often the initial motivation for choosing

FDR was that of avoiding the legal alternatives, which were consideredcostlier, stressful and/or more acrimonious. After the

fact, FDR participants could also identify advantages of the mediation process itself. We conclude that affordability and con-

flict mitigation are important to clients when choosing and evaluating pathways to property settlement. Those opting to use

lawyers instead often wanted more guidance with regardto outcomes, orconsidered legal pathways more authoritative.

Key Points for the Family Court Community

Few Australians use Family Dispute Resolution (FDR, or mediation) to resolve their post-separation property

matters—in stark contrast to the widespread use of FDR for parenting matters.

In this context, it is important to understand why separating couples may choose FDR for property matters and why

many do not.

Interview data highlights the perceived benefits and disadvantages of FDR, compared to using lawyers or going to

court, for property matters.

Affordability and conflict mitigation are important to clients when choosing and evaluating pathways to property set-

tlement; and were identified as advantages of FDR.

Those opting to use lawyers instead often wanted more guidance with regard to outcomes, or considered legal path-

ways more authoritative.

Keywords: Australia; Family Dispute Resolution; Mediation; Property; Qualitative.

I. INTRODUCTION

Although a majority of separating couples in Australia make their own arrangements for property

division (Kaspiew & Qu, 2016), many require some kind of formal assistance with property dispute

resolution—either mediation (now known as Family Dispute Resolution), lawyer-led negotiation and/or

courts. Legal processes are most commonly used, while the use of Family Dispute Resolution (FDR)

for property matters is low: only 4% of separated parents in the large, national Longitudinal Study of

Separated Families (LSSF) had used FDR as their main pathway, compared to 29% who had used law-

yers as their main pathway and 7% who had been to court (Kaspiew & Qu, 2016). A smaller study of

separated parents in the state of Victoria also found that FDR was rarely used for financial matters

(Fehlberg & Millward, 2013; Fehlberg, Millward, & Campo, 2010). Meanwhile, the use of FDR for

property disputes between partners without children is unknown.

Corresponding: gheard@rav.org.au

FAMILY COURT REVIEW, Vol. 59 No. 4, October 2021 790–809, doi: 10.1111/fcre.12565

© 2021 Association of Family and Conciliation Courts.

FDR continues to play a minor role as a primary pathway towards post-separation property set-

tlements; that is, agreements that set out how former par tners will divide the property (including lia-

bilities) of the relationship. This remains the case despite studies demonstrating a strong need for

affordable professional assistance to resolve family law property disputes, particularly low value

disputes, in Australia (Fehlberg, Millward, et al., 2010, p. 233; Fehlberg, Smyth, & Fraser, 2010;

Kaspiew & Qu, 2016; Productivity Commission, 2014, p. 870). It is also despite a longstanding

appreciation, based on U.S. research, that mediation clients in property disputes are generally more

satisfied with their settlements than those who use adversarial methods, a finding which is linked to

clients’greater control over outcomes in the mediation setting (Kelly, 1989; Pearson, 1991). Simi-

larly, separated Australian parents who participated in the LSSF were somewhat more likely to con-

sider their property settlements fair if they had used FDR as their main pathway than if they had

used a lawyer or been to court (Qu, Weston, Moloney, Kaspiew, & Dunstan, 2014).

Alongside these benefits, mediation in family law matters is cheaper than adversarial methods, not

only for separating parties but for governments, through savings in the form of judicial time and other

court-related expense (Conneely & O’Shea, 2019; Kelly, 1996; Whitehead & Birnbaum, 2020).

Australian Government reforms have supported the use of FDR. Changes to the Family Law Act in

2006 made it compulsory, with certain exceptions, to attempt FDR before taking a parenting matter to

court. To facilitate this, the Government established 65 Family Relationship Centres (FRC) around

Australia offering subsidized FDR services (Moloney, Qu, Weston, & Hand, 2013; Parkinson, 2013).

While FRC services were initially limited to parenting matters, their remit was recently extended to

include property matters (Attorney General’s Department, 2019). This subsidized service now exists

alongside pre-existing property dispute resolution services supplied by community-based FDR pro-

viders on a fee-for-service basis. While the expansion in FRC services is welcome, improved accessi-

bility alone does not address a common barrier to participation in FDR for property matters; namely,

that one party simply declines to engage in the process (Heard, Bickerdike, & Lee, 2021).

The more significant step of legislating compulsory pre-filing property FDR has been consid-

ered, and was even announced by the Labour Government in 2010 (Fehlberg, Smyth, et al., 2010),

but has not proceeded. A Productivity Commission Report (2014) recommended that “the

Australian Government should…introduce requirements for parties to attend family dispute resolu-

tion prior to commencing a family law property matter in court”(Productivity Commission, 2014,

p. 845, Recommendation 24.5) advising that this “will assist family law property disputes to be

resolved at the most appropriate level”(p. 875). More recently, the Australian Law Reform Com-

mission (ALRC), in their Discussion Paper for the Inquiry into the Family Law System, proposed

that "the Family Law Act 1975 (Cth) should be amended to require parties to attempt family dispute

resolution prior to lodging a court application for property and financial matters”(ALRC, 2018,

p. 106, Proposal 5-3), with a limited set of exceptions including urgency and family violence. While

“many submissions”supported this policy shift, “a limited number,”including from the Law Coun-

cil of Australia, criticized the proposed requirement. The proposal was not reflected in the final

report from the ALRC Inquiry, which merely supported “greater use of FDR and other non-court-

based mechanisms for resolving property and financial matters”(2019, p. 257), and no such

requirement has been introduced.

In the context of a system where pre-filing FDR for property matters remains non-compulsory,

we know very little about how clients perceive their options, and about the reasons why clients

choose or do not choose FDR as opposed to legal alternatives. Yet understanding client perspec-

tives, and in particular how clients perceive the benefits and drawbacks of the available options for

property dispute resolution, is centrally important to assessing the scope for increase in the use of

FDR for property matters, where appropriate, as supported by the ALRC.

The current paper seeks to explore these perspectives using inter views with clients seeking assis-

tance in reaching post-separation property arrangements. More specifically, the research provides

empirical evidence on separated clients’views of the benefits of using FDR, relying on lawyer-to-

lawyer negotiations, or litigating as a means of reaching a fair division of property. Thematic analy-

sis of the material gathered enables us to identify the commonly perceived benefits and

Heard and Bickerdike/PROPERTY DISPUTE RESOLUTION CHOICES IN AUSTRALIA 791