New requirements for filing parenting applications

From 1 July 2007, if you want to apply to the Court for a parenting order (and you have not previously applied), you will need a certificate from a registered Family Counsellor or Family Dispute Resolution Provider which confirms that you have participated in family dispute resolution or attempted to do so. There are some exceptions to this requirement, such as urgent cases or cases involving family violence or child abuse.

After 1 July, the Family Law Courts will not accept a new application for a parenting order without a certificate from a registered Family Counsellor or Family Dispute Resolution Practitioner unless an exemption has been claimed.

For more information about compulsory dispute resolution call the Family Relationship Advice Line on 1800 050 321 or go to Family Relationships Online

Family dispute resolution

Changes to the Family Law Act 1975, introduced in July 2006, emphasise the need to use community-based family relationship services. For more information visit the Family Relationships Online.

Under the changes, services within the community are provided by accredited practitioners, such as family dispute resolution practitioners and family counsellors.

Unless authorized by the Family Law Act, family dispute resolution practitioners and family counsellors must not disclose communications made in family counselling or family dispute resolution. See Sections 10B-10K of the Family Law Act for detail about accredited community-based practitioners.

What is family dispute resolution?

Family dispute resolution is the name in the Family Law Act for services such as mediation and conciliation that help people affected by separation and divorce to sort out their disputes with each other. You may have reached a point where you can’t agree on issues concerning your property, children, or money. You may not be able to talk to each other at all.

Family dispute resolution can help you sort out these issues without going to court. If you can resolve your differences you’ll save yourself time, money and a whole lot of stress.

What is compulsory family dispute resolution?

From 1 July 2007, if you want to apply to the court for a parenting order (and you have not previously applied), you will need a certificate from a registered family dispute resolution provider which confirms that an attempt at family dispute resolution was made.

It is expected that, from 1 July 2008, this requirement will apply to all applications, including those seeking changes to an existing parenting order.

There are some exceptions to this requirement, such as cases involving family violence or child abuse.

What are the exceptions to compulsory family dispute resolution?

You are not required to attend family dispute resolution:

	where you are applying for procedural orders, interim orders or consent orders
	where the matter is urgent
	if the court has reasonable grounds to believe that:

– family violence or child abuse has occurred, or

– there is a risk of violence or child abuse if there was to be a delay

	where it is not practical for you to attend (for example, it is too far to a dispute resolution provider or you are physically unable to attend)
	where a person has contravened and shown a serious disregard for a court order made in the last 12 months.

If you use the exception relating to family violence or child abuse, you will need to get information about your options and about services that can help you. You will need to get this information from a family counsellor or family dispute resolution practitioner or by ringing the Family Relationship Advice Line on 1800 050 321.

However, you do not have to get this information if the court has reason to believe there is a current risk of violence or child abuse.

What is a ‘registered’ family dispute resolution provider?

A registered family dispute resolution provider is an individual or organisation who has met the required standards of training, experience and suitability for inclusion on the Family Dispute Resolution Register. Registered family dispute resolution providers can conduct family dispute resolution and, if needed, issue a certificate for you to take to court to confirm that an attempt at family dispute resolution was made.

The Australian Government funds Family Relationship Centres, and a number of other community-based organisations, under the Family Relationship Services Program to provide Family Dispute Resolution Services across Australia. Other organisations may be designated under the Family Law Act 1975 to provide family dispute resolution. All these organisations will be registered family dispute resolution providers. Individuals working in private practice may also apply to be registered family dispute resolution providers.

Why should I use a registered family dispute resolution provider?

Where you are unable to resolve your arrangements through family dispute resolution and decide to go to court, you will need a certificate to say you have tried to solve the matter through family dispute resolution (unless you meet one of the exceptions). You will only be able to obtain a valid certificate from a registered family dispute resolution provider.

How do I find a registered family dispute resolution provider?

You can find a family dispute resolution provider by clicking on the following link:

Find a registered family dispute resolution provider.

Alternatively, you can locate registered family dispute resolution providers as well as a range of other services for families on this site.

What information will a family dispute resolution practitioner provide me with?

Family dispute resolution providers must provide you with a statement about the process and your rights and about the qualifications of, and fees charged by a family dispute resolution practitioner before family dispute resolution can be started.

If you are trying to resolve disagreements about your children, the family dispute resolution practitioner must give you information about parenting plans and other services available to help you.

Family dispute resolution practitioners are also required to provide you with the particulars about a complaints mechanism which you can use should you wish to complain about the services they provide to you.

What happens in family dispute resolution?

A family dispute resolution practitioner can help you and the other person discuss issues, look at options, and to develop arrangements for your children.

Before family dispute resolution can commence, an assessment will be made to see whether family dispute resolution is suitable for your situation.

Are things said at family dispute resolution confidential and can they be used in court?

Under the Family Law Act, everything you say in front of a family dispute resolution practitioner is confidential – except in certain circumstances, such as to prevent a serious threat to someone’s life or health or to prevent the commission of a crime.

What is said during family dispute resolution cannot be used as evidence in any court. However a family dispute resolution practitioner must report child abuse, or anything said that indicates a child is at risk of abuse and this may be used as evidence in some circumstances.

What if you are feeling unsafe?

If you have concerns about your safety or the safety of your children, you should let the service staff know as soon as possible.

There are ways of conducting family dispute resolution that do not involve being in the same room as the other party. However, the practitioner will need to have particular skills in conducting family dispute resolution in cases involving family violence.

If you have experienced abuse or violence from your ex-partner, it’s important that you feel safe and are safe before, during and after family dispute resolution.

In some cases it will not be appropriate to go ahead with family dispute resolution.

The family dispute resolution practitioner should discuss the options with you.

What happens to any agreement reached in family dispute resolution?

If you reach an agreement on arrangements for your child, this can be recorded as a parenting plan. To be recognised under the Family Law Act, a parenting plan must be in writing, dated and signed by both parents. Your agreement or parenting plan can include details on how the plan can be changed and how disagreements about the plan will be resolved. Agreements can be renegotiated over time, if necessary.

If you want to make your final parenting plan or financial agreement legally binding, you can apply to the court to have your agreement made into a consent order. You can do this yourself or ask your lawyer to do it for you. More information on Parenting Plans is available on Family Relationships Online.

What if no agreement is reached?

Even if you can’t reach agreement, family dispute resolution may help you communicate better and better manage areas where you disagree.

If you try family dispute resolution but still need to take your case to court, you will need a certificate from a registered family dispute resolution provider.

The certificate will say one of the following:

	the other party did not attend
	you and the other party attended and made a genuine effort to resolve the dispute
	you and the other party attended but one or both of you did not make a genuine effort to resolve it (eg by refusing to participate), or
	the family dispute resolution provider decided that your case was not appropriate for family dispute resolution.

Note: Party means the other person or person involved in the parenting dispute, for example your former partner.

What if I don’t attend or make a genuine effort?

If family dispute resolution is required in your case but:

	you don’t attend, or
	you don’t make a genuine effort to resolve the dispute

the court may:

	take this into account in deciding costs (you could be ordered to pay some or all of the other party’s legal costs), and/or
	order you and the other party to attend family dispute resolution.

What will it cost?

The cost of family dispute resolution depends on the provider.

Private providers set their own fees.

Family Relationship Centres provide up to three hours of family dispute resolution free but may charge fees if further sessions are needed. Family Relationship Centres and family dispute resolution services funded by the Australian Government are required to have a fees policy that takes into account the capacity of the client to pay.

Information brochures

Information brochures for families

Key Legislation

	Family Law Act 1975
	Family Law Amendment (Shared Parental Responsibility) Act 2006
	Family Law Regulations (1984)

(From Family Relationships Online)
 

Family Consultants

Within the family court staff employed as family consultants work on cases involving children. They provide a continuing service as the case moves through the court process.

Family consultants are family and child specialists who assist the Courts to resolve disputes. Communications with a family consultant are admissible as evidence, meaning the information may be made available to the court at a later date. There are exceptions to this: information about settlement negotiations privileged. This means that the judicial officer cannot be told what you discussed in the negotiations, except in limited circumstances. Sections 11A-11E of the Family Law Act contain the law about the role of court-employed family consultants.

Can I ever speak confidentially with the family consultant?

No, but a judicial officer or registrar may order that you attend an appointment with a family counsellor or family dispute resolution practitioner. Communications with a family counsellor or family dispute resolution practitioner are confidential and are not admissible in court. In this situation, you may have both a family counsellor or family dispute resolution practitioner and a family consultant carrying out their role. This will not be the same person.

The Family Law Act also says that a court can refer people to community-based family counselling, family dispute resolution and other family services, see Section 13C.

There are a number of organisations which offer similar services. You will need to check which one meets your needs.

To find out more about the service options, call the Family Relationship Advice Line on 1800 050 321 or visit the Family Relationships Online.

Family Court child dispute services for Aboriginal and Torres Strait Islander people

The Family Court provides specialist services for Aboriginal and Torres Strait Islander people. The Court employs six Indigenous family liaison officers:

Alice Springs (two Aboriginal consultants, male and female)
Darwin (two Aboriginal consultants, male and female), and
Cairns (one male Aboriginal consultant and one female Torres Strait Islander consultant).

If you need the help of an Indigenous family liaison officer, talk to the administrator of your community or phone the family law registry in Darwin, Alice Springs or Cairns during office hours. Indigenous family liaison officers will respect the privacy of the family and the Indigenous way of doing things.

(from Family Law Website)

Domestic Violence and Incest Resource Centre:  Preparing for Mediation - tips from women who have experienced domestic violence

The tips and quotes below are based on research about women's experiences of using mediation services to try to resolve disputes with abusive ex-partners. Domestic Violence and Incest Resource Centre, in partnership with Relationships Australia (Vic) interviewed these women as part of a research project.

A briefer tip sheet on this topic can be downloaded as a Word file here.

Introduction

The Federal Government’s vision for the future in family law is ‘to bring about a cultural change in the way family breakdowns are handled. Separating parents should sit down across the table and agree what is best for their children, rather than fighting in the courtroom’ (The Attorney-General’s Department, 2005:1). This ‘cultural change’ will be achieved by promoting alternative dispute resolution (ADR) or mediation services.

If you are attending a mediation session it can help to know what has helped other women to prepare for the process. These tips have been provided by women who have experienced domestic violence and who have participated in mediation. Some of these women had voluntarily decided to participate in a mediation session with their ex-partner. Others had to attend mediation as part of a legal requirement.

What is Mediation?

The National Alternative Dispute Resolution Advisory Council (NADRAC) defines mediation as ‘a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement’. The mediator does not give legal advice or make decisions about the dispute – their role is to help both people to identify and discuss the issues in a respectful environment and reach an acceptable solution. During the session(s), both people describe the dispute, what is happening at present, and then discuss solutions, looking towards the future.

You can go to mediation to resolve disputes about property or arrangements for your children. Mediation is not usually about trying to reconcile your relationship and get back together (unless you both agree that this can be discussed during the session).

You and your ex-partner might not reach agreement on all of the issues discussed in the mediation session, or it may take a few sessions to reach agreement. You don’t have to reach an agreement. If you are unhappy with any agreement that is being negotiated, or feel that you or your children might not be safe as a result of the arrangements that are being suggested, then you do not have to agree.

The agreements reached are not usually legally binding until a court has made an order. If you attend mediation to discuss a parenting plan (this might cover where the child will live, time spent with each parent and family, decision-making about the children, and other issues) and you want the agreement made to be legally binding, then you can lodge the agreement with the Family Court for a small fee. In some types of mediation, lawyers are allowed to attend to assist negotiations, but in most cases lawyers cannot attend.

How domestic violence can affect your ability to mediate

The aim of mediation is to try to resolve a dispute you have with your ex-partner.

If your ex-partner has been abusive or violent towards you, participating in mediation can potentially be difficult and stressful. The process of mediation presumes that both partners can speak their minds freely and confidently. But if you have been abused, it can be hard to speak up if you feel intimidated, pressured or afraid because of your partner’s abuse.

‘Because of the abuse [you can] feel in a position of having to ask for something rather than having an entitlement [to it] … that is a flow on from abuse and it does affect the mediation process’ – Kate.

‘I was completely unprepared because I didn’t know how that mediation would go along [or] what protective mechanisms were in place for me’ - Sophie.

It can be difficult to let services know that you have been living with family violence or abuse, but it is important that you do so if you can. Remember too that emotional abuse (for example someone putting you down, manipulating you, controlling your behaviour or threatening you) can be just as traumatic and difficult to deal with as physical violence, so it is important to tell the mediator about these experiences.

‘I did say that although he never hit me I was emotionally terrified of him… My ex-husband can be very charming, so I guess I was pretty scared that, even if I said anything [about the abuse]…when [the mediator] would meet [my-ex-husband] then my story would be negated. So it’s been very difficult … to trust whether someone’s going to believe me anyway.

Mediators have to have some level of neutrality, but they need to also know what that costs the person. I think for mediators to actually understand some of the effects of abuse on women, how incredibly difficult it is just to even talk about it, to name it; that to be visible is so dangerous. To even understand the triggering process that can take you back into an emotional timeless abused state [which] is not a very easy place to be [in] when you’re trying to answer questions’ – Kate.

Contacting the mediation service

When you first contact the mediation service, there are a number of things you may want to consider asking about.

1. Find out about the mediation process. Find out what mediation is, what will happen in the session, and what happens with any agreements made. You could also ask if and how your children can be involved in the process, if that is what you wish. The mediation service should have information that they can send you, including examples of parenting plans, information about family law, Centrelink etc. You could also ask about complaint mechanisms and what you can do if you feel that the mediator treats you unfairly or seems biased.

2. Tell the mediation service about the abuse you have experienced. As discussed above, it is important to tell the service about your experiences of abuse, and to find out how they can assist you with this.

3. Ask for a separate intake session. Most services provide an ‘intake’ session before the actual mediation and negotiation occurs.

At many mediation services, the intake session is done jointly with you and your ex-partner present. In this session you both discuss the background to the dispute, the issues you wish to cover in mediation, and anything that you feel may affect the mediation process. During a joint session, the mediators will speak to you together and also talk to you privately to check how you are feeling about the session and to discuss anything that you don’t want to say in the joint session.

You can, however, also request your own separate intake appointment with the mediator. This can give you more time to privately discuss your experiences of abuse or violence, and how you believe they might affect your ability to participate in mediation. You can also discuss the kinds of outcomes you want to consider (for example, what safety measures are required in a parenting plan).

'The [individual] session was limited to an hour and… I kind of blurted out part of my story. The time constraint [was difficult] - I had to … be able to use that time in order to take this first step of the process. I couldn’t explain all of what I had experienced. But it was important because I knew that my ex-partner could portray himself as anything that he wanted [to]’ – Annie.

If you feel like you haven’t had enough time to understand the process or to discuss your fears about the mediation session or the abuse, let the mediator know this.

4. Ask about practical arrangements to protect your safety
   ‘I only got there a couple of minutes beforehand because I was really frightened that he might have been in the waiting room’ - Sophie.

Many women say that they were nervous about seeing their ex-partners before or after the actual mediation sessions. You could ask if the service can provide separate waiting areas so you don’t have to wait in the same room as your ex-partner. Can they arrange separate arrival times and departures? Where can you park your car? The service may be able to offer you ‘shuttle’ mediation (where you and your ex-partner are in separate rooms) rather than joint mediation, or ‘co-mediation’ (where both a male and a female mediator run the session).

Co-mediation can be helpful for victims of violence. Having a male and female mediator can make it easier for them to pay attention to communication patterns and issues of power in the sessions. For example, ‘Annie’ commented that having a male and a female mediator there was helpful for her:

‘I think he [ex-partner] had to check in on himself more...He couldn’t turn around [and] say one thing to me and a different thing to someone else. I think it affected him that there was another woman in the room, a woman in the position of real power… so I think that was really good’ - Annie.

What to look for in a mediation service

Some mediation services have more awareness than others about dealing with clients experiencing domestic violence. You should be able to expect that a service can provide the following, but this may not always be the case.

A mediation service may be able to:

§         offer a separate intake session for you, where you can talk to the mediator alone before attending the mediation (see above];

§         discuss other options that may assist you to feel safe, such as shuttle mediation (where you and your partner are in separate rooms) or co-mediation (both a male and female mediator facilitate the session); and

§         assist you with practical safety arrangements, such as providing separate waiting areas or separate entry/exit points to the building.

A mediator should:

§         take domestic violence seriously and ask about experiences of violence, including non-physical forms of abuse or harassment;

§         help you consider the possible impact of abuse on the mediation process;

§         offer you a separate time to discuss any concerns before, during and after the mediation sessions;

§         set ground rules at the start of the session for what forms of communication and behaviour are acceptable and what are not (for example, no put-downs, no intimidating behaviour etc);

§         work out a signal that you can use to indicate to them if you are feeling threatened or need a break;

§         check with you privately during the mediation session to find out how you are going;

§         control any abusive behaviour in the mediation session and /or assist you to deal with it; and

§         help you to deal with any harassment or intimidation that occurs outside of the mediation session itself.

Prepare yourself for the mediation

Get legal advice before and after the mediation

‘Get some legal advice and think about … what your rights are both in terms of property and children matters’ – Lesley.

Getting legal advice is important. It can help you to be clear about family and property law and how it relates to you, as these matters may be discussed during the mediation session.

In some cases, lawyers may attend mediation sessions. But in most forms of mediation, lawyers cannot attend mediation sessions. So it is important to get advice about your legal rights before the session.

When you talk to a lawyer make sure she/he understands what you want.

Any agreement you reach in mediation is not legally binding until a court has made an order. In cases where there is violence or abuse and you are developing parenting plans in mediation, you may want to lodge these with the Family Court to provide you with some formal support if the agreement is breached.

Identify your wishes and know your bottom line

Think about what you want to achieve in mediation. Be clear about what you want to discuss and what you don’t want to discuss.

‘I’d worked out before what was worth fighting’ – Kate.

‘I had done some preparing of what I wanted from the mediation process - in fact I was really clear about what I wanted from the mediation process’ – Annie.

Some women found it helpful to write points down:

‘[if] you have written it down then you can actually remember the structure of the sentence and the ideas and it’s not like you having to drag it out of some emotional mess … you can remember the dot points you made for yourself’ - Lesley .

You could discuss what you want with your lawyer, counsellor or other support person.

‘We worked out what was my bottom line and how to stay on course’ – Kate.

Talk to mediator beforehand to be ready for the session

It’s important that both you and the mediator are clear about what steps to take if at any point you become distressed, or feel unsafe.

Find and prepare any documents

These may include bank statements, outstanding loans, superannuation, school holiday calenders. Bring these to the session.

Find Support

‘...I didn’t realise that the mediation session would tap into the ongoing feelings about having no rights, no identity, no status, being undeserving, needing to be punished for leaving the marriage…’ – Kate.

‘I had a friend to drive me in because I was too shaken to drive’ – Sophie.

Mediation can be stressful and difficult. It can help to have a friend come with you or meet you after the mediation session. It is possible to have a friend to provide emotional support for you during the mediation session, but this will be allowed only if your ex-partner agrees to it.

Talking with a counsellor can help you to prepare for what might be distressing about the process. One woman had a counselling session before the mediation and also saw a domestic violence service for support:

‘I actually had a very good session with my therapist in the morning preparing me for all the possible things. I also, in between the first mediation session - the single one and the joint one - I did see a domestic violence outreach worker for one appointment and that was really useful too’ - Kate.

You need to do what is right for you - if you feel you do not need any support then that’s fine.

‘I didn’t want any of my friends there - I have been through hell, I didn’t want them to see me upset’ – Sue.

It has helped some women to think or talk to a counsellor/friend about what made them fearful and in what ways ex-partners used to put them down.

‘She enlightened me to the fact that it wasn’t my fault and that my husband was a controlling person’ – Clare.

Things to remember about mediation

       You have a right to speak, to be respected, to be heard, and to ask for what you would like.

       You have the right to have a break.

       If you feel pressured or pushed to reach agreement, you have a right to end the session. When your partner has been abusive in the past it's particularly important that you have time to reflect on any agreements and consider their suitability and safety before you agree. This is a good time to get more legal advice.

This tip sheet was prepared by DVIRC and Pia Mathys as part of a student placement for her Bachelor of Arts (Advocacy and Mediation) at Victoria University.

Domestic Violence and Incest Resource Centre is interested to hear your feedback about this information – contact us via phone or email dvirc@dvirc.org.au.

The Domestic Violence and Incest Resource Centre also had developed a discussion paper. To find out more click on: -

Behind Closed Doors: Family Dispute Resolution and Family Violence. Discussion Paper 6, 2007.