Mediation in Family Law
Pursuant to section 60I of the Family Law Act 1975 (Cth), parties in family law matters must first make a genuine effort to resolve the dispute through family law mediation or family dispute resolution (FDR). Whilst this is optional for property matters, it is compulsory for parenting matters*.
FDR is a type of family law mediation specifically designed to help separating families come to their own agreements. If the dispute remains unresolved, parties can then apply to a Family Law Court to have a judge make the decision. For parenting matters, a Section 60I certificate from an accredited family dispute practitioner must be filed with the application to begin proceedings.
*Section 60I(9) and 60J provide exceptions in instances including the following:
- where the matter is urgent;
- where is risk of abuse of the child or children;
- where there is risk of family violence;
- where a party is unable to participate effectively due to incapacity or physical remoteness; or
- where there is a contravention of an existing order.
What to expect at family law mediation
Family law mediation involves attending a meeting with a neutral third party FDR practitioner. The practitioner is trained in mediation and negotiation specifically for family law disputes. There is an option known as shuttle mediation that involves parties attending the family law mediation through separate rooms if it is not suitable for them to be in one room. Both parties also have the option to have their lawyer present throughout this process.
Parties are required to disclose documents of their financial position and other relevant information. The FDR practitioner assesses the information, listens to both sides and assists the parties to come to a mutual agreement. The main focus is to resolve specific issues, not concentrate on the emotional side of the relationship. Both parties will have the opportunity to express their concerns and consider different options in a safe and supportive environment.
For parenting matters, both parties will be encouraged to focus on the needs of their child or children and make a parenting plan for future parenting arrangements. The process can take anywhere from a few hours to several days, depending on the number of issues present and the parties compliance to reach workable solutions.
It is important to note that non-attendance demonstrates that you have not made a genuine effort to resolve the dispute through FDR. This may affect your court hearing listing date and will be used as evidence put before the court that you have not made a genuine attempt at resolution. This may also result in you being made to pay the other party’s legal costs.
What happens after mediation
Successful or not, the practitioner will issue a Section 60I certificate to allow an application to be made to a family law court. A Section 60I certificate can also be issued if FDR is not appropriate for a particular matter due to family violence concerns, the safety of the parties and risks to children, the ability for each party to be able to negotiate, or other issues the practitioner feels are relevant.
Pursuant to s 60I(8), the parties will receive a certificate stating any of the following:
- That meditation was attended by both parties and there was a genuine effort made to resolve the dispute;
- That mediation was attended by both parties but one or both of the parties did not make a genuine attempt to resolve the dispute;
- That mediation was not attended because one of the parties refused to attend; or
- That mediation was not attended because the practitioner believed it would be inappropriate to conduct FDR.
If the parties reach a mutual agreement, they can make a parenting plan or file a consent order with a family law court without instituting legal proceedings. After the agreement is formalised it becomes binding and must be obeyed by both parties. Parenting plans can be renegotiated over time if necessary, with new consent orders issued.
Benefits of mediation
Family law mediation is one of the first points of call during family law disputes because it is less formal, more cost effective and allows the parties to have greater control and management of the process and the outcome. For some disputes, mediation can provide a faster solution to the issues at hand and is a much more effective way of moving forward without having to go to court. Mediation is confidential and allows the parties to talk openly about the issues they are having, allowing each to be heard.
Where to find dispute resolution services
There are a number of private and government-funded services available to those who are interested in pursuing family law mediation. Private FDR practitioners may be found through this register, but it should be noted that private providers set their own fees.
Some of the key government-funded services include:
- The Family Relationships Advice Line (1800 050 321) is a good place to contact to receive initial advice and resources about the family law system and family issues. It can also provide referrals to dispute resolution centres or other necessary services.
- Family Relationship Centres. The Family Relationship website provides details about centres and locations on their interactive map. The first hour is free for all families. The centre then charges $30 per hour for the second and third hour for clients earning $50,000+ per annum. If more hours are required, the centre charges fees in accordance with their fees policy. It is important for low income earners and those experiencing financial hardships to notify the centre prior to their sessions.
- Legal Aid Commissions in your state or territory. Eligibility will be determined by a merit test that considers whether it is reasonable in all circumstances to grant free legal representation and a means test that considers income, assets and whether you receive or provide financial assistance.
It is important to seek legal advice to help you understand your rights, responsibilities and the law applicable to your matter. Our experienced family law team can explain the process further and assist you throughout all stages of your matter.
Disclaimer: The information provided is a general summary and is not intended to be nor should it be relied upon as a substitute for legal or professional advice.