As per our previous blog post family law mediation is now compulsory across Australia except in exceptional circumstances when there has been a breakdown of a relationship that concerns either parenting and/or property arrangements.
There are some situations where an exemption for the requirement of mediation can be obtained however we would still, in most situations, highly recommend that mediation is attempted before any litigation process.
In some situations unfortunately mediation is not successful and we often have clients asking what happens next.
The process as part of family dispute resolution is for the parties to attend a mediation. Depending on whether a government-funded mediation service is used or a private mediator, the mediation process can take anywhere from 3 hours and in some cases up to 5 months delay depending on wait times for the government-funded centers. After the conclusion of the mediation, either party can request a certificate be issued by the mediator which is a certificate issued pursuant to Section 60I of the Family Law Act 1975. This is often referred to as a “Section 60I certificate”. These specialized certificates can only be issued by an accredited family dispute resolution practitioner who has been verified by the Attorney General’s Department across Australia.
The certificate will simply note the following:
- If a party did not attend
- If each of the parties attended but made a genuine effort to resolve their dispute
- If both parties attended but one or both parties did not make a genuine effort to resolve the dispute
- If the practitioner mediator decided that the case was not appropriate for mediation after considering the factors; or
- If the practitioner decided it was not appropriate to continue with the mediation partway through
Please note the use of party means each of the parents if it’s a parenting dispute or each of the parties if it is a property dispute.
After the conclusion of mediation if there is no agreement then either party can, using their section 60I certificate consult a solicitor and apply directly to court for assistance. This would be an unfortunate part of the process as obviously the point of mediation is an attempt to resolve the issues. However, in many situations parties cannot reach an agreement even using the services of a specialized mediator and they should then consult a family law solicitor in their local area for further assistance.
In some situations, parties can reach an agreement at mediation and they then have available to them a number of options:
- If the agreement relates to parenting some parties simply leave mediation and continue their arrangement without anything formalized. This works in a huge amount of cases and certainly, there is no requirement to have anything drawn up legally after mediation if both parents are working co-operatively for the benefit of the children.
- If parents reach an agreement regarding children’s arrangements they could ask for a written document called a parenting plan. This is usually a two to three-page document that is typed out, dated, and signed by each of the parties after mediation evidencing their agreement at that time. Please note a parenting plan simply sets out arrangements for the children and is not a court order. It cannot, therefore, be contravened. It can, however, be of great assistance if the matter does proceed to court to show the agreement at that point in time particularly if one party then resiles from the agreement or fails to follow it.
- Parties can, after a property mediation if an agreement is reached or in parenting matters if an agreement is reached, proceed to lodge an application for consent orders at the Federal Circuit and Family Court of Australia. An application for consent orders is a document completed and signed by each of the parties that requests the court make orders in accordance with the agreement reached. In most situations, parties will need the assistance of a lawyer to have this document drawn up however it is far more cost-effective than proceeding directly to court.
Our specialized solicitors at our offices at Parramatta, Penrith, St Marys, Richmond, and Sydney as well as our Glenmore Park office across Western Sydney are able to assist in drafting consent orders.
For further assistance please contact our staff on 13004FAMILY or email us at reception@rafton.com.au.