Under Australia’s Family Law Act 1975, separated families must first undertake family dispute mediation before approaching the court for orders about parenting.
This requirement both helps the Family Court manage its workload and provides a more affordable, more accessible way for parties to a dispute about how their children will be raised come to an agreement of their own making.
Through mediation – also sometimes referred to as ‘alternative dispute resolution’ – an ex-couple can be assisted by a neutral third party who will help them discuss the areas on which they agree and those where they disagree to help find middle ground as the basis for an agreement.
Below is more detail on how this process works but if you have any questions or concerns about family dispute resolution, contact us for detailed information today.
How does a mediation session work?
In many cases couples with children who separate are able to come to their own agreement on the living arrangements for the children, including issues about education, health, holidays and the myriad other issues a family must address.
An informal agreement between former partners can be given effect by being brought before the court and formalised as ‘consent orders’, with both parties then obliged to honour the terms of the agreement.
Where the above issues can’t be resolved between the parents, a family law mediator can be engaged. This person generally has specialist training and accreditation to perform the role. Acting as an independent third party, the mediator is there to facilitate discussion and negotiation, rather than lead or direct. If there is a history of family violence between the parties, or a threat thereof, the practitioner is trained to handle this circumstance.
In most cases, both parties will meet at a neutral location, such as the mediator’s conference room or another mutually convenient venue, at a set time. The mediator will make an introduction and explain how the discussion will work, with both parties able to make their case detailing their wishes for the children.
The parties will then often split into separate rooms and employ what’s known as ‘shuttle mediation’ as the mediator goes back and forth between the parties to help refine the areas where compromise is possible.
While its possible for each party to have a legal representative with them, unlike in court lawyers are expected to provide support and advice at the appropriate time, rather than try and run the mediation process.
Ultimately, the aim is to achieve an agreement both parents can live with as a parenting plan. If agreed on, the mediator can create the plan in writing and have it dated and signed by both parents.
Any parenting plan should include detail on how it can be changed in the future and how disagreements can be resolved. Most people allow for the fact the plan will be subject to change as children grow older and become more independent.
Children’s participation in the mediation process
Depending on their age, children may be included in the mediation process. In most cases, a special family consultant with experience interviewing children – who may or may not be the appointed mediator – is engaged to conduct interviews with children and then provide details of what they said back to the parents before their mediation.
The older a child is, the more likely their views will be taken into account in formation of a parenting plan or, later, by the court if the dispute cannot be resolved through mediation.
What happens if dispute resolution is unsuccessful?
Where the mediation process is unsuccessful, the mediator can issue a ‘Section 60I’ certificate so that the parties can then apply to the Family Court for parenting orders.
The certificate is issued to cover a number of circumstances, including that both parties attended and made a genuine effort to resolve the dispute. It can also indicate that one party did not make a genuine effort, that one party did not attend, that the mediator decided mediation was not appropriate in the circumstances (such as where family violence is present) or that the process could not be completed.
Exceptions to dispute resolution
There are a few exemptions to the compulsory requirement for parties to mediation before applying to the court for parenting orders.
- When the parties are formalising an agreement through ‘consent orders’;
- where family violence or child abuse is a factor;
- when one or both parties are responding to an application to court;
- where one party is unable to participate effectively (due to incapacity, geographical location or other factors);
- where a person has contravened and shown a serious disregard for a court order made in the last 12 months.
The benefits of this form of dispute resolution
Applying to a court for orders in relation to parenting or other matters involved in a relationship separation is both expensive and time-consuming. Legal representation, court fees and delays in the matter coming to court are all issues to be considered.
By contrast mediation is significantly cheaper, takes less time and empowers the ex-couple to come up with their own solutions to the difficult issues involved in parenting arrangements.
Provided each party approaches mediation with a civil, cooperative mindset and a genuine desire to create a workable parenting plan, family law mediation can avoid the need for the stress and time involved in going to court.
Talk to us today at Mediations Australia