Counselling and Mediation
Disputes involving Children:
The best possible result for children of separating parties is for the parents to reach an agreement as to the living arrangements for the children. In making any decision, the Court has regard to two primary considerations being:-
- The benefit of the child having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
To assist parties to reach an agreement the Family Law Act, and Rules of Court impose on the parties a responsibility to explore alternatives to litigation before such proceedings are commenced. Those requirements include:-
- Provision to the parties of a copy of the Court’s Central Practice Direction which outlines the core principles applicable to family law proceedings
- That each party make a genuine effort to resolve the dispute before filing an application to start proceedings, and only if it is safe to do so:-
- Give a copy of the pre-action proceedings to the other party.
- Make enquiries about the Family Dispute Resolution Services available.
- Invite the other party to participate in Family Dispute Resolution.
- Give the other party written notice of an intention to start proceedings.
- Before an application can be filed in Court in relation to children’s issues (except for limited exceptions such as family violence or abuse) a mediation certificate (Section 60I) must be issued by a family dispute resolution practitioner.
- Mediation can be undertaken in various formats and may include your solicitor. Usually it is best to obtain legal advice before committing to any agreement that might result from mediation.
- There are a number of avenues available to obtain the Section 60I certificate including the following:-
- Contact the Family Relationships Advice Line 1800 050 321.
- Go online to familyrelationships.gov.au
- Contact Relationships Australia (in Sydney) 1300364 277.
- Contact CatholicCare (in Sydney) 1800 225 474
- Contact a private registered family dispute resolution practitioner.
Wait times for mediation can vary significantly between different organisations. Mostly, private mediators will have the shortest wait time.
If one, or other, of the parties has felt the need to instruct a lawyer, in relation to children’s issues, those matters are then, generally, finalised, either by way of a written Parenting Plan, or, probably by way of a Court Order. A Court Order may be made by agreement, or after a hearing in front of a Judge.
If proceedings are commenced in Court the matter will eventually be referred for private mediation or for a family dispute resolution conference with a judicial registrar and a court child expert.
Disputes involving Property:
Usually financial issues require the expertise of a mediator who is also a lawyer, and can provide guidance as to the Court process in relation to property matters. Depending upon the mediation model utilised by the mediator, feedback on each party’s position can also be provided. The Court requires the parties to comply with pre-action procedures before considering filing an application about property issues, only if it is safe to do so. Those pre-action procedures include:-
- Giving a copy of the pre-action proceedings to the other party.
- Making enquiries about the Family Dispute Resolution Services available.
- Invite the other party to participate in Family Dispute Resolution/mediation.
- Make a genuine effort to resolve the dispute by participating in dispute resolution.
- If agreement cannot be reached, provide to the other party written notice of an intention to start proceedings.
So that you are not disadvantaged, it is of the utmost importance that you obtain independent legal advice before entering into mediation in relation to property issues.
In property matters, after all necessary documents have been filed in Court, the matter will be referred for further mediation, either with a private mediator or for a conciliation conference with a Registrar of the Court (depending upon the resources of the parties and the amount in dispute).
The Lawyer’s Role – When you see a solicitor in relation to these issues, one of the matters discussed will be the question of mediation, and in particular whether you may require a mediation certificate. The solicitor will also advise as to other dispute resolution methods, including corresponding directly with the other party, or the other party’s solicitor. It is not uncommon for more than one mediation, often dealing with the issues of children and property in a segregated fashion.
Throughout, both the solicitor and the Court will be very mindful of the significant benefits of a negotiated settlement. Your solicitor must take appropriate steps to attempt to negotiate a settlement through an appropriate mediation process, and avoid litigation if at all possible.