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

The majority of people involved in Family Litigation have to engage in Family Dispute Resolution before they can commence court proceedings. Family Dispute Resolution includes Mediation and is aimed at resolving issues stemming from a Divorce or Separation without the parties having to commence court proceedings.

Family Dispute Resolution, must be provided by a person, who has been accredited as a Family Dispute Resolution Practitioner by the Court.

The Family Dispute Resolution Practitioner has the power, to issue a certificate that the matters under dispute were not able to be resolved through mediation. Only once such a certificate has issued, the parties are able to commence proceedings in the Family Court. If a party fails to comply with the requirement to participate in Family Dispute Resolution procedures before commencing proceedings in the Court, they may leave themselves open to a Court order that they pay the legal costs of the other party.

Mediation during Family Litigation

If you are already involved in Family Litigation the Court also has the power to make an order at any stage of the proceedings, that the parties attend Family Dispute Resolution such as Mediation.

The Court has the power to make further orders if a party fails to attend Mediation when ordered to by the Court and these are usually not favourable to that party.

Are there any exceptions to attending Mediation?

There are circumstances recognised under the Family Law Act 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 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 services;

(f) There is a genuinely intractable dispute; or

(g) A person would be unduly prejudiced or adversely affected if another person to the dispute is given notice of an intention to commence Family Litigation.

What do I need to do?

If you are considering commencing Family Litigation or in the middle of Family Litigation you need to be aware of the powers of the Court in relation to Family Dispute Resolution including Mediation. At Barwick Boitano Lawyers we have extensive experience in Family Litigation and can advise you on whether you need to attend Mediation or whether you are an exception to Mediation under the Family Law Act.

If you are experiencing the breakdown of your marriage or de facto relationship and need advice on Family Litigation, call Frank Boitano at Barwick Boitano Lawyers today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.

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