Mediation – Parenting
Other than in cases of urgency, the Courts require you and your former spouse to undertake Mediation prior to instituting any proceedings with respect to parenting issues. The requirement for Mediation is also set aside in circumstances involving family violence.
Mediation must be conducted through one of the accredited Mediation services. Organisations such as Relationships Australia, Centre Care, Anglicare, UniFam and various family relationships centres, as well as many private practitioners specialising in the area, offer these services. Links to some of these are set out below:-
The Mediation process normally involves one or both of you and your former spouse approaching the Mediation service for an initial intake. Having made a preliminary assessment, they would then normally invite your former spouse to also participate in a preliminary intake and schedule joint sessions with the two of you. The process may take a matter of weeks, or it may take months depending on how involved your problems may be. Hopefully, of course the Mediation will result in a settlement which than can be implemented by way of Consent Orders. Alternatively, if the matter cannot be settled, then a Certificate will issue which will allow either you or your former spouse to institute proceedings through the Court system seeking appropriate Orders in relation to the children’s care, welfare and development.
Even after proceedings have commenced, the Courts will require you and your former spouse participate in Court appointed Mediation with a Family Consultant being a counsellor attached to the Court system. As part of that process, the Family Consultant would normally issue a Child Dispute Memorandum identifying the areas of dispute, areas of agreement and issues for further consideration.
If your matter proceeds all the way through to a final hearing, then you could expect part of the evidence relied on by the Court at that final hearing will be either a Family Report prepared by a Family Consultant or an Expert’s Report prepared by a Forensic Psychiatrist or Psychologist with the appropriate expertise. Such Reports are normally only obtained where there are serious psychiatric or psychological issues impacting on either the parents or the children. Where there are no such issues involved, the Courts would normally be able to rely on a Family Report prepared by a Family Consultant (who are normally either a psychologist or social worker). Such Reports will provide not only an unbiased background to your matter but, will also provide a number of recommendations. There is no magic in such Reports but, as you would appreciate, the recommendations contained after a careful analysis of your matter by an Expert in the area or a Family Consultant will carry some significant weight with the Court.
Mediation – Financial
Both the Federal Circuit Court and the Family Court also require settlement negotiations to be pursued in financial matters prior to the institution of proceedings (other than in cases requiring urgent Court action). The various brochures linked to this website provide details in relation to same. In essence, however, the Pre-Action Procedures require full and frank disclosure of your financial affairs to your former spouse and those advising them. The obligation is mutual on both of you.
Such disclosure is normally done by the provision of a Financial Statement, as well as copies of up-to-date bank statements, superannuation account statements, and the provision of the most recent balance sheets, profit and loss accounts and similar documents from any corporate entities with which you are involved, as well as provision of your most recent income tax returns and/or assessments.
Mediation can either be done directly through your respective solicitors or with the assistance of an outside organisation or accredited mediator. There is also the possibility, of course, that the matter can be settled without any such formal process on the basis of one party making an offer and the other party accepting it.