Posts

Mediation is when two conflicting parties in an argument come together with an impartial mediator, whose role is to impartially facilitate discussion and negotiation. The aim is to find a resolution for their dispute and avoid costly, lengthy and emotionally taxing litigation and Court proceedings.

Family Dispute Resolution (or FDR) is defined in section 10F Family Law Act 1975 as:

“A process (other than a judicial process) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process

A Family Dispute Resolution Practitioner (FDRP) is a mediator, accredited with the Attorney General Department after undergoing additional and specific training.

People looking at their options for mediation have lots of questions about what a mediator does and how the FDRP process works. Some of these questions are listed below.

 

  • Mediation vs divorce lawyer – What’s the difference?

Your lawyer is your advocate retained to represent your interests in a Family Law matter or Divorce proceeding. They work in your best interest to get you the best outcome possible. Your ex-partner’s Divorce lawyer will do the same for them. Lawyers are required in litigation before the Court which can be a consuming process, both emotionally and financially.

Mediation empowers separated couples to find an outcome themselves, with or without lawyers being involved. Discussions in mediation are ‘without prejudice’ and cannot be used as evidence in Court if an agreement isn’t reached.

Mediators provide a structure/process for discussions to occur. They address:

  • power imbalances between the opposing sides through interventions
  • assist the parties to better understand the interests and concerns of the other party
  • facilitate negotiation

Most importantly, the mediator is impartial while a Divorce Lawyer represents only one side in the dispute.

 

  • Are the mediation sessions confidential?

Divorce litigation, where the matter goes to court, are confidential and protected by confidentiality provisions in the Family Law Act 1975.

Mediation and FDR is also confidential, and the discussions are “without prejudice” which means the proceedings can’t be used in evidence. There are exceptions to confidentiality though, such as:

  • if a party makes threats to commit a criminal offense
  • information regarding commission of a crime comes to light
  • there’s information regarding risk to a child

The mediator or FDRP is required by the Regulations to report in the above circumstances.

 

  • I don’t feel safe, what should I do?

Mediation or FDR may not be appropriate if there’s family violence or other power imbalances that affect a party’s ability to participate effectively in the process.

Prior to mediation your mediator or FDRP will usually contact you with a series of questions as part of a screening process. The screening process will allow the mediator or FDRP to decide whether the mediation should proceed.

If there’s family violence but the mediator thinks mediation can proceed, the process can be conducted by way of ‘shuttle’ with the parties kept separately and the mediator acting as a go between.

 

  • What happens if we can’t agree?

Sometimes parties can’t resolve their differences with the assistance of mediation. Sometimes couples, despite their good intentions, just can’t agree. Hopefully some issues can be narrowed or better understood via the process and in parenting matters the Family Dispute Resolution Practitioner can issue a Section 60I Certificate allowing the parties to file in Court. The Certificate will indicate to the Court one of the following from the FDR:

  • The parties attended and made a genuine effort to resolve the dispute;
  • The parties attended but one or both did not make a genuine effort to resolve the dispute;
  • Mediation didn’t proceed because one party didn’t attend after being invited by the FDRP;
  • Mediation wasn’t appropriate.

 

  • But what happens when we do agree?

Depending on the dispute there are different potential outcomes if the parties agree.

For property settlement disputes, heads of agreement can be reached and signed which set out the basis for a Consent Order, or Binding Financial Agreement, to be produced.

In parenting disputes, a Parenting Plan will record the agreement which may or may not be made into a Consent Order at a later date. Whether there is a Consent Order, or the agreement remains as a Parenting Plan is a matter for the parties.

 

  • What will mediation do for me?

Mediation empowers the parties to make their own decisions. This tends to create a greater likelihood for satisfaction with respect to outcomes (particularly as an alternative to having a Judge impose an Order).

Experienced Family Lawyers will understand that very often neither party walks away satisfied from “having their day in Court”. Mediation can significantly reduce costs of litigation, the delays often experienced with the process and the animosity created by the opposing side.

Particularly in parenting matters where child focus is important, mediation can assist the parties to move away from entrenched positions. FDR allows them to closely explore each other’s interests and the best interests of the children in the dispute.

 

I once heard a Judge tell a mother and father, “I don’t know your children, or love your children – why do you want me to make these important decisions for them”.

 

Need more information? Read these:

You may have received information about property settlements from television shows, back yard BBQ’s, people you know, and good old Google searches. There’s a problem with this, though. Only your divorce lawyer (also called a family lawyer) can properly advise and guide you through the settlement process.

When you don’t have a family lawyer, what you find, hear or read
might not apply to you, like these five (debunked) myths below.

 

Myth #1: We can only start dividing property once we divorce

Not true. You can begin settlement proceedings when you separate. Calling your family/divorce lawyer is an important first step to take if you know there’s no chance of reconciliation.

Getting the right information early assists in minimising conflict, obtaining faster resolution and reducing legal costs.

Your divorce lawyer at Hooper Family Lawyers will answer any questions you have during an initial consultation, which can take up to two hours. Bring any documents you believe are important and make a list of you and your partner’s assets, superannuation and liabilities.

 

Myth #2: Everything is a 50/50 split

Just because you’re married or in a de facto relationship doesn’t mean assets are split 50/50 on separation.

The law requires that the contributions and future economic circumstances of the parties are examined. The amount of time the parties are together and number and age of children is often examined in assessing how much one side will receive.

The contributions of the parties are not just financial, but also non-financial and as homemaker and parent. Financial contributions do not rank more highly than others. That saying ‘money isn’t everything’ certainly applies here.

 

Myth #3: The only way to end this is going to court

Your divorce lawyer, divorce lawyer or family lawyer assists you to avoid going to court. Most will regard it as the last option. Instead of going to court, most divorce cases can get settled through mediation.

Even if court proceedings begin, the process is very much geared towards settlement. There’ll be directions for a conciliation conference or mediation ordered early on. Statistically, of the matters that begin in court only about 2% to 5% go all the way through to a final hearing.

 

Myth #4: The breadwinner will get more

The Court looks at the contributions that are direct and indirect, financial and nonfinancial. They also regard the acquisition, conservation and improvement of the properties for settlement; and as parent and homemaker, when it comes to adjusting property and superannuation. Even if one parent was a homemaker and didn’t work, they still contributed significantly to raising the children and maintaining the home. This is regarded the same as the breadwinner’s contribution.

When deciding how to divide property, the Court looks at the following:

  • The net value of the property, assets and superannuation
  • Contributions both parties have made over the years
  • The future needs of each side

 

Myth #5: My partner cheated, so the odds are in my favour

The Family Law Act 1975 introduced the concept of “no fault” divorce. Therefore the majority of judges aren’t concerned with any alleged misconduct from one side. Not even when the misconduct could be regarded as “immoral” or similar.

This changes if the misconduct has an economic impact. Where there has been a negligent, reckless or wanton destruction of property, the conduct of whoever’s responsible is considered. Gambling or even the effect of domestic violence on property are examples of this.

In child custody cases, behaviour/conduct is closely examined. The conduct, though, must be relevant to best interests of the child, especially when protecting them from unnecessary risks. Will the settlement affect a parent’s ability to keep their kids safe from emotional, physical or sexual harm?

The above are some of the “myths” commonly encountered, but there’s plenty more out there. You best way forward is to trust a family law expert, your divorce lawyer. We set you on the correct path from the moment you walk into your consultation.

A child custody lawyer is no stranger to disputes, separations, and court proceedings. They’ve seen and experienced it all. Having a lawyer like this during a difficult time is best for the parent who doesn’t know where to start or who to turn to. The lawyer’s sat through hostile disputes, the more ‘civilised’ mediations, and custody matters going to court.

Despite this, some people might ask:“is this person qualified?”. Skepticism is natural and, of course, you want the best. Any legal practioner you meet has worked long and hard to get to where they are today. They’d have gone to university, then proceeded to Practical Legal Training. This is required in all states except Western Australia. Completing the practical training earns them a Graduate Certificate in Legal Practice. The prospective lawyers must then apply for a license to practice and admission to the law society in their state. Having a membership with a society puts their name on a “roll call” of lawyers that are qualified to work. 

Lawyers are constantly educating themselves; they attend seminars and receive updates from the law societies they’re registered with. Every few years, attourneys and law practices must update their licenses in order to keep working.

After reading all the above information, you know your lawyer is qualified for at least general practice. Many lawyers and solicitors commonly go on to study their masters, attain graduate diplomas, and have memberships with the Queensland Law Society and the Family Law Practitioners Association. Child custody lawyers, or at least other employees in the firm, can work as solicitors and mediators. You’ll want these people on your side during dispute resolution, something compulsory in every custody case.

There is no official title for ‘child custody lawyers’ as such, but there’s attourneys who’ve got experience with parenting disputes. Offices like Hooper Family Lawyers deal with cases involving custody issues, domestic violence, and property law among others.

A child custody lawyer goes through years of formal education but never stops learning. They earn their stripes at university, through traineeships, and long hours. Clients come to them during one of the most difficult periods they’ll ever face. But the lawyer has seen and experienced it all.

The family report has significant weight in parenting proceedings and to assist with parenting arrangements post separation. It is often very helpful to have a family report prepared prior to mediation or family dispute resolution to assist separated parents. It is important to understand what the report entails, who writes it, and how it affects custody arrangements. 

Who writes it?

The court appoints a specialist family report writer to write the family report. The family report writer is an independent expert and can be appointed privately by the parties or as Court appointed “family consultant”. Strictly speaking the report writer has the status of being a Court Expert (Federal Circuit Court Rules) or Single Expert witness (Family Court Rules). This means the family report writer is not a witness for either party and may be cross examined by either party. The specialist normally has a background in psychology and/or social work.

How is the report written?

Once the court appoints the report writer or consultant they begin the interview and observation process. They will interview both parents and people close to the family and often observe the children in an informal interview, observe transition between adults, and see how they interact with the adults. The children have the option to speak with the family report writer or consultant but can choose not to.

What factors are considered?

In a custody matters, the aim is to ensure the best interests of children are met. Interviews with family members assist to determine issues in the custody matter that need to be addressed and provide recommendations as to the best interests of the children:

  • The nature of the existing parenting arrangements and important relationships in the lives of the children (parental and other)
  • Examination of allegations of unacceptable risk of harm (physical, psychological or sexual)
  • The responsibility parents have shown towards obligations as parents
  • The parent’s capacity to care for their children
  • The views of the children in the case

To keep in mind

It is important to make sure you attend the interview process. Failing to attend may cause delay, potentially cause costs against you, or that the family report is admitted into evidence without your input. Your divorce lawyer should provide you with date, time and other necessary information in advance. 

The report is only one piece of evidence in the case but the judge usually places a fair degree of weight on the opinion of the independent expert. The report writer or consultant makes recommendations about custody and access to children but the court isn’t obliged to follow them. If there’s an argument about the report, there’s an opportunity to cross-examine the consultant and the family members they interviewed.

Lastly, there’s no such a thing as off the record in a meeting with the report writer or consultant. They’re obliged to write a thorough report. Anything they’re told either goes in writing or sent to the court.

Family Consultant FAQs

What is a family report?

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.