For most people, going to Court is the last thing that they want to do. And yet, where people can’t agree between themselves about property or parenting matters after separation, some people think that Court is the only option. It isn’t. There are alternatives to going to Court to resolve a dispute including mediation – and the good news is that they are generally cheaper, quicker, and a lot less painful!
Participation in Family Dispute Resolution for parenting disputes is mandatory prior to commencing proceedings in Court, unless there are good reasons not to. Section 60I of the Family Law Act (1975) requires that if there is a dispute about parenting matters, it is necessary to file a section 60I certificate with your Court application which demonstrates that an attempt has been made at Family Dispute Resolution, or an exemption applies. Exemptions include:
- Where there is evidence that child abuse has occurred or is a risk;
- Where there has been family violence by one of the parties or there is a risk of family violence by one of the parties;
- The application is a contravention application about contravention of an order that is less than 12 months old;
- Where there are circumstances of urgency; or
- Where one or more of the parties are unable to participate effectively in family dispute resolution
Section 60 I certificates can be issued by registered Family Dispute Resolution Practitioners who are usually either lawyers, psychologists or social workers who are specially trained to provide mediation services in family law matters.
Most Family Dispute Resolution Practitioners follow a mediation approach. Mediation in relation to Family Law matters is common, both for parenting and property matters – and you should be aware of the different types of mediation options open to you.
Options for mediation include:
- Mediation using “public” options such as Family Relationship Centres, and service providers such as Centacare and Relationships Australia;
- Mediation using “private” options where you choose the mediator, and pay them privately;
- Mediation that is “lawyer inclusive” – that is you have a lawyer with you to provide advice and help you to negotiate effectively ( and to prepare any agreement you reach at the end);
- Mediation that is “child inclusive” – where your kids speak to a child consultant, who then provides feedback in relation to how the kids are going, what is worrying them, and what the kids want you to know.
Different mediators will use a different style of mediation, and there is no “one size suits all” approach to mediation. Not all mediation options will suit your situation, and we recommend that you speak to an experienced family law practitioner who can assist you to assess the most appropriate form of mediation, and guide you to mediators who are most likely to be suited to your personal family situation and the type of dispute that you have at the moment.