Table of Contents
- What Is Family Court Mediation?
- Family Court Mediation Process
- Is Family Law Mediation Mandatory?
- How to Prepare for Mediation Family Law
- Section 60I Certificate
Family law disputes can be highly emotional and stressful experiences for all parties involved. In Australia, the Family Court provides mediation services as a means of resolving disputes between parties without having to go to trial. Mediation is a confidential process where a neutral third party, the mediator, assists parties to reach a resolution.
What Is Family Court Mediation?
Family mediation is a process where parties in a family law dispute meet with a mediator to try and reach an agreement on the issues in dispute. The mediator is an impartial third party who assists the parties in identifying and exploring the issues, discussing options and working towards a resolution that is acceptable to all parties involved. The mediator does not make decisions for the parties but instead helps them to reach an agreement through negotiation and compromise.
Family Dispute Resolution (FDR) is a mediation and dispute resolution service process that helps separated families make their agreements. With the help of a neutral and accredited practitioner, families discuss the issues and focus on their children’s needs to develop a parenting plan. FDR is a cost-efficient way of sorting out future parenting arrangements and is required by Australian family law before applying to the family court for parenting orders.
Exceptions to the requirement exist in cases where an agreement is being officially put in place due to cases of domestic violence or child abuse, a court application needs to be responded to quickly, a person is unable to take part in proceedings due to a physical or geographical limitation, or if a person has disobeyed and demonstrated a clear lack of respect for a court order that was issued in the past year.
Mediation to settle a disagreement can be much cheaper than Court. The cost of family dispute resolution (FDR) depends on who provides it, and certain people may be eligible for free services. Private providers may have different fees, while community-based family law services charge according to income and ability to pay.
Family Court Mediation Process
The Family Court mediation process typically involves the following steps:
- Referral to Mediation: The parties of a family relationship may be referred to mediation by the Court or they may choose to attend mediation voluntarily. The FDR service provider ought to offer appropriate venue options that cater to your specific situation. It is not mandatory for an FDR session to be conducted in-person or in the presence of the other party. It is permissible to hold an FDR session via telephone or video call for several reasons, such as safety concerns or geographical distance between participants.
- Initial Assessment: The mediator will conduct an initial assessment of the dispute to determine whether mediation is suitable and if so, what type of mediation is appropriate.
- Pre-Mediation: Prior to the mediation, the mediator may conduct individual interviews with the parties to discuss their concerns and gather information.
- Mediation Session: The mediator will facilitate a discussion between the parties to explore the issues in dispute and assist them in reaching an agreement.
- Agreement: If an agreement is reached, it will be documented in writing and signed by the parties. This is known as consent order.
- Court Outcome: If an agreement is not reached, the parties may choose to continue with Court proceedings and apply to the Court for appropriate orders.
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Is Family Law Mediation Mandatory?
Family law mediation is not mandatory in Australia, but it is encouraged by the Courts. Before filing an application in Court, parties are required to make a genuine effort to resolve their dispute through mediation or other forms of dispute resolution. If parties refuse to attend mediation, it may be taken into account by the Court in determining an appropriate outcome.
However, it is compulsory under Australian family law for separated parents to attempt Family Dispute Resolution before applying to a family law court for parenting orders.
How to Prepare for Mediation Family Law
If you are attending family law mediation, there are a few things you can do to prepare:
Be Prepared
Ensure you have all the relevant documents and information you need to discuss during the mediation. After an individual has enlisted the assistance of an FDR practitioner’s assistance, the practitioner will typically extend an invitation to the other party to attend a mediation session. It is also likely that the practitioner will advise the non-attending party that if they choose not to participate in mediation, a certificate may need to be issued, allowing the first person to seek legal recourse in a family law court.
The FDR practitioner is responsible for evaluating whether FDR is an appropriate course of action based on unique family circumstances. Factors such as family violence, safety concerns, power imbalances, the welfare of children, the psychological and emotional well-being of participants, and any other relevant matters that may impede the success of FDR will be considered.
Identify Your Priorities
Identify the most important issues to you and be prepared to compromise on less important issues. Any conversation held in the presence of an FDR practitioner is treated with confidentiality, with a few exceptions, such as if there is a potential threat to someone’s well-being or the commission of a criminal act.
Additionally, any statements made during FDR sessions cannot be used as evidence in Court. However, in cases where there is an indication of child abuse or danger to the child’s safety, the FDR practitioner is obligated to report it, and such information may be admissible as evidence under certain circumstances.
Keep an Open Mind
Be willing to listen to the other party’s point of view and consider their proposals. Having a third-party practitioner present during the dispute-resolution process can assist the parties in discovering alternative paths to progress that they may not have previously considered. The primary responsibility of the FDR practitioner is to facilitate the discovery of solutions rather than allocating fault.
Be Respectful
Be respectful and courteous to the other party and the mediator.
Seek Legal Advice
It is important to seek legal advice from a family lawyer before attending mediation to ensure that you are aware of your legal rights and obligations.
Section 60I Certificate
In family law in Australia, a Section 60I Certificate is a certificate issued by a registered Family Dispute Resolution (FDR) practitioner, indicating that the parties have attempted to resolve their dispute through FDR. The certificate is required before an application can be made to a family law court for parenting orders, except in cases involving family violence, child abuse, or urgency. The certificate confirms that the parties have made a genuine effort to resolve their dispute through FDR and the reasons for the failure if unsuccessful.
The certificate is crucial as it demonstrates that the parties have attempted FDR before turning to litigation, as required by the Family Law Act 1975.
If you require a lawyer to represent you in family law mediation, contact our team of expert child custody lawyers in Sydney.
