Family Law – Do I have to engage in Mediation if I am involved in Family Litigation?

Mediation allows for a neutral party to assist separating partners in reaching a mutually acceptable agreement. In family law parenting matters, mediation is a requirement as separating families are encouraged to use family dispute resolution to arrive at a mutual agreement regarding the children, without court intervention. This is because the central focus of such matters is the best interests of the children. The mediation is usually undertaken by a Family Dispute Resolution Practitioner and the process is more commonly known as Family Dispute Resolution (FDR).

Whilst mediation is not compulsory in family law property matters, the Courts do encourage that parties reach their own agreement without the intervention of the Court, which is something that can be facilitated through mediation. Mediation can be effective as it is a way for parties to have control over the terms of the agreement. In both property and parenting matters, mediation can save on the emotional costs, time costs and financial costs that Court proceedings will bring.

Following FDR or mediation in parenting matters, the FDRpractitioner or accredited mediator will issue a certificate that informs the Court that the parties have attended FDR or mediation. The Certificate will take on one of the following forms being:

  1. Whilst you attended mediation, the other party did not;
  2. Even though both parties attended, the FDR practitioner or mediator chose not to proceed with the mediation as they considered it to be inappropriate in the circumstances;
  3. Both parties made a genuine effort to resolve the issues;
  4. Whilst you made a genuine effort to resolve the issues, the other party did not; and
  5. Even though the FDR/ mediation commenced, the FDR practitioner or mediator found it inappropriate to continue.

Only once such a certificate has been issued, the parties are able to commence proceedings in the Court. If a party seeks to commence proceedings in the Court without a Certificate from the FDR practitioner or mediator, they must file an Affidavit of Non Filing of Family Dispute Resolution Certificate and explain the reasons that an exemption from participating in mediation is claimed.

Are There Any Exceptions To Attending Mediation?

For parenting matters, there are circumstances recognised under the Family Law Act that governs situations where mediation is not appropriate. These circumstances are where the court is satisfied that there are reasonable grounds to believe that:

(a) There has been an abuse of a child by one of the parties to the proceedings;

(b) There would be a risk of abuse to a child if there were a delay in Family Litigation;

(c) There has been or there is a risk of family violence by one of the parties to the proceedings;

(d) The application is made in circumstances of urgency;

(e) One or more of the parties is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or

(f) If the application is made in relation to a contravention of the order by a person the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the Order.

If you are experiencing an issue that requires a family law specialist on your side, contact Barwick Boitano Lawyers today. Call us, email us or visit us online to find out how we can help you.