When parents cannot agree on issues that affect a child’s near and long term future, parental mediation is advised.
These might include disagreements between you and your former partner like:
- Who the child should live with
- time spent with each parent
- where the child lives
- what childcare or school the child attends
- and their educational well-being (i.e. homework)
- what extra-curricular activities the child participates in
- third parties involved with the child (i.e. babysitters, extended family, new partners)
- the child’s financial well-being (nutrition, doctor and specialist appointments)
Prior to filing an application in court for parental issues, the Family Law Act requires you to try mediation, sometimes known as obligatory family conflict resolution. Section 60i of the Family Law Act contains this clause.
What is a 60i certificate, and what does it entail?
The mediator will grant you a 60i certificate if you seek mediation or conflict resolution and the other parent refuses to participate or you are unable to reach an agreement. This certificate will enable you to have the court consider your parenting dispute and decide on it.
There are certain exceptions to the requirement to get a 60i certificate. The following are examples of these scenarios:
- If your matter is urgent, such as a Recovery Order;
- if the court is satisfied there are reasonable grounds to believe there has been child abuse or that the child/children are in imminent danger;
- if a party is unable to participate effectively in family dispute resolution, for example, due to incapacity or physical distance from a family dispute resolution provider; or
- if your application relates to an alleged breach of an existing order that was made.
The advantage of using mediation before going to court is that you might be able to achieve an agreement that is in the best interests of your child/children, especially if the following things happen:
- You hire a qualified mediator;
- both parents are willing to make concessions in order to achieve an agreement;
- and both parents are fully committed to resolving the issue.
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Why is it necessary to mediate?
Family Dispute Resolution (“FDR”) or mediation must be completed before you may go to the Family Court for parenting orders in child custody/parenting issues unless you are entitled to an exception. All parties must make a “sincere effort” to settle concerns during mediation.
Making a sincere effort entails examining the other party’s point of view and being open to examining solutions for settling the conflict proposed by the other party or the FDR practitioner.
When taking part in mediation, try to concentrate on what your child or children require and what is best for them. It’s frequently preferable to avoid discussing the past and instead concentrate on how you and the other person can move ahead.
What are the exceptions to this rule?
The following exclusions may be considered appropriate by the Family Court as justifications for not participating in mediation:
- if you’re requesting consent orders;
- if you’re replying to a request;
- if the issue is urgent (the Family Court will determine if the asserted reasons for the urgency are sufficient to justify an exception);
- if there has been or is a threat of domestic violence or child abuse;
- if a party is unable to participate effectively (for example, owing to incapacity or geographic location);
- if a party is unable to participate effectively (for example, due to incapacity or geographical location); or
- if a person has disobeyed and showed severe contempt for a court order issued within the past year.
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What happens if my spouse or partner refuses to mediate?
If your spouse or partner refuses to mediate, or if mediation fails to settle your issue, you can receive a certificate from the FDR practitioner or mediator stating that you have requested your spouse or partner to attend mediation with you and either:
- they have declined to participate;
- the mediation did not settle the points in dispute; or
- the mediator judged that the case was not appropriate for mediation (for example, in cases involving family violence and abuse or a risk of family violence or abuse).
Who will act as a middleman?
A private mediator (a person certified and trained to conduct mediation, known as an FDR practitioner) or a government-funded organisation, such as a Family Relationships Centre, can conduct mediation.
The Family Law Act of 1975 allows only authorised FDR practitioners to issue FDR certificates (Cth).
Who goes to mediation?
Only individuals who are actively involved in the dispute will often attend mediation.
If authorisation is granted by the relevant organisation, your lawyer can attend mediation held by a private mediator with you, as well as mediation performed by a government-funded organisation.
In most cases, children are not included in the mediation process.
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How long will it take to reach an agreement through mediation?
The mediation procedure (including preparation) might take a couple of weeks, or if complex, months.
Both parties meet with the mediator individually for an ‘intake session,’ often known as a ‘child-focused session.’ This helps the mediator to get a broad picture of the issues at hand and analyse any potential risks.
The mediator will determine whether the subject is suited for mediation once both parties have completed their intake sessions. A combined session is organised if the mediator believes the topic is appropriate. If the mediator does not believe the case is appropriate, the parties will be notified and an FDR certificate will be issued (if requested by a party to do so).
A ‘shuttle’ joint session is one in which the parties are in different rooms and the mediator walks back and forth between them throughout the mediation. In most situations, a ‘shuttle’ mediation is designated for those mediations where the couple refuse to meet each other face to face for whatever reason. They can be just as effective in resolving conflict as face to face mediation and often, better.
If there are issues that need to be addressed or evaluated further, more than one joint session may be held.
What is the goal of mediation?
If the parties achieve an agreement, the mediator or FDR Practitioner may help the parties document their agreement, such as by assisting in the preparation of a parenting plan that the parties can sign. This agreement can then be filed with the Family Court in the form of a consent order or a parenting order to make it legally enforceable.
If an agreement cannot be reached, a registered FDR Practitioner can issue an FDR certificate, which must be presented to the Family Court as proof that the parties made a “sincere attempt” to address their differences.
Mediation has a number of advantages, including the following:
- it is confidential;
- it is a quick and effective first step in resolving a dispute;
- if an agreement is reached, it saves them time, money, and potential stress of having to go through lengthy a Family Court trial;
- it is a more structured, dynamic and much more effective yay of dispute resolution than usual negotiation;
- it gives the parties more control over the decision – if a dispute goes to Court, the decision will be left to the judicial officer; and compliance with agreements reached through mediation is usually high.
You have everything to gain from mediation in terms of really being able to settle the underlying issues rather than going to court and having a judge make choices for you and your family. Everything spoken during the mediation is private and cannot be used as evidence in any court case, making it a secure setting.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourn, Brisbane, and all other locations in Australia. We also do international family law matters.