Counselling and Mediation
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. The Court has as the primary basis of any decision “what is in the best interests of the children”.
To assist parties to reach an agreement the Family Law Act now imposes on the parties a responsibility to explore alternatives to litigation before such proceedings are commenced. Those requirements include:-
- Giving consideration to, and if possible, participating in dispute resolution such as negotiation, conciliation, mediation, and counselling. Except in certain circumstances, prior to commencing any proceedings, the other party must be invited to participate in a primary dispute resolution process (a minimum being negotiations between solicitors) and the Court requires each party to make a genuine effort to try and resolve the dispute without litigation.
- Before an application can be filed in Court in relation to children’s issues, a mediation certificate must be issued by a family dispute resolution practitioner (except in exceptional circumstances such as family violence). There are a number of avenues available to obtain that certificate including the following:-
- Contact the Family Relationships Advice Line 1800 050 321.
- Go online to familyrelationships.gov.au
- Contact Relationships Australia (in Sydney) 8362 2888.
- Contact CatholicCare (in Sydney) 9307 8100.
- Contact a registered family dispute resolution practitioner directly.
Mediation is available through government sponsored centres, or private mediators, to deal with children’s issues, and also financial issues. Because of the limited number of government subsidised family dispute practitioners available, recent experience is that there is often a delay of up to 2 or 3 months from the date of making contact with the mediation centre before an appointment can be arranged. It is therefore prudent, on separation, to give immediate consideration to making an appointment for mediation so that time begins to run. Often, there is a much shorter delay with using private mediators.
Often 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. No certificate is required from a mediator to commence proceedings in relation to property matters, however, consideration must be given to settlement negotiations, and an attempt made to reach a negotiated settlement, before commencing proceedings.
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.
Throughout, both the solicitor and the Court will be mindful of the potential benefits of a negotiated settlement and will do all things possible to effect an agreement with the assistance of counselling and/or mediation if that appears appropriate.
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. Alternatively, a Court Order may be made by agreement, or after a hearing in front of a Judge.
If proceedings are commenced in Court in relation to children’s issues, parties are initially referred by a Judge for a Child Dispute Conference, with a Family Consultant, who is an experienced psychologist employed by the Court. That process is useful for:
- Identifying the issues;
- Assisting the parties to consider settlement options;
- Advising the Court as to the best way to deal with the matter from that point.