After the breakdown of a relationship, stress levels can be at an all-time high with emotions running wild. When it comes to the care of children, parents understandably can become very stressed about the future care of their children including who they are going to live with, what school they are going to attend and what time they are going to spend with each parent. This is where family law mediation, also known as Family Dispute Resolution (FDR), comes in. FDR gives parents the opportunity to try and discuss post separation arrangements that are in the best interest of their children.
FDR encourages separating couples to parent cooperatively rather than racing straight to Court which inherently tends to cause conflict in the family. Unfortunately, children can often suffer because of the conflict of Court meaning they get drawn into the dispute between their parents. FDR aims to minimise the conflict between parents and encourages parents to work out their parenting issues together without the need to involve the children.
Parenting disputes not only include who the children may be living with but also where the children may live, what time they spend with the other parent or other family members, what school they may attend, what religion they may participate in and any other matter pertaining to the development and welfare of the children.
Parenting disputes not only include who the children may be living with but also where the children may live, what time they spend with the other parent or other family members, what school they may attend, what religion they may participate in and any other matter pertaining to the development and welfare of the children.
During the process of mediation, each party is given the opportunity to voice their opinions and concerns without that information becoming available to a Court as everything that is said in a mediation is considered confidential. If parties do not feel like they wish to be in the same room during a mediation, the mediation is able to progress on a shuttle basis so that the parties needn’t come face to face, but are still able to come to decisions together.
If parties are able to come to some agreement as to the parenting arrangements of the children in the mediation, this can be formalised into a parenting plan or consent orders. Of course, arrangements needn’t always be formalised and can be kept fairly informal between the parties if that is what is preferred.
Generally, mediation is to take place with an authorised mediator. Parties are able to organise a mediation privately or through organisations such as Relationships Australia or Uniting Counselling and Mediation, Unifam Sydney
When it comes to mediation, most parties opt to attend a mediation without a solicitor, however often people wish to have someone with legal knowledge either present or accessible by phone so that they can ensure that any agreement reached covers most issues.
If no resolution is able to be reached or a party chooses not to participate in the mediation, the registered mediator will issue a section 60I certificate which allows a party to file in the Federal Circuit Court or the Family Court of Australia. A section 60I certificate remains valid for 12 months after the date of issue.
BENEFITS OF MEDIATION
The benefits of mediation are quite extensive. Mediation is a considerable amount cheaper than traditional Court processes. It is also a lot quicker with the typical family law matter now taking on average 18 months to conclude. Mediation also promotes a level of communication and cooperation between the parties which will create a positive effect for their children.
Additionally, it is widely acknowledged that no person knows a child as well as a parent and as such it is recommended that parents come to an agreement that is tailored to their children and their parenting style. In mediation, parents have the ability to have a say in orders that are agreed to where as in a Court situation, if the matter progresses to a final hearing, neither party has any command over the orders decided by a Judge.
REQUIREMENT OF MEDIATION IN FAMILY COURT MATTERS
Since 2006, it has been a requirement under the Family Law Act 1975 that parties attend family dispute resolution prior to filing an application in Court requesting that the Court make parenting orders. Part of the requirement is that the parents make a genuine attempt to try and resolve their parenting dispute so as to avoid the lengthy process of Court.
There are obvious exceptions to the requirement of a section 60I certificate, including:
- Circumstances which requires the urgent attention of the Court, such as a recovery order or relocation order;
- Where there has been, or there is, a risk of family violence; or
- Where there has been abuse of a child or there is a potential risk of abuse.
To apply for an exemption for any of the reasons above, additional information needs to be prepared and filed with the Court as to why an exemption should be given. We would recommend that you consult with one of our solicitors at Rafton Family Lawyers if you wish to seek an exemption.
Contact our Sydney Family Law Office if you need any help.