Dr Cate Banks, Family Dispute Resolution Practitioner - for SingleMum.com.au | 24 July 2011
It’s pretty much common knowledge now that before separated parents can seek a court order about the arrangements involving children, they must attend mediation. Mediation or Family Dispute Resolution as it is referred to more often in this context, is a process involving a neutral third party that assists people to discuss issues and work out an agreement together. The court requires some evidence that mediation has been attempted before commencing court proceedings. This evidence is in the form of what is referred to as a Section 60I certificate.
There are some exemptions to this rule, particularly where there has been a history of violence, child abuse or there is a risk of those occurring. But the reality is, even if you can bypass the requirement the first time, the court must consider making an order for you and your ex partner to go to mediation anyway. This doesn’t mean they will, but it is always a possibility.
If you are in this category, it would be important to seek information and advice from specialized domestic violence and legal services to assist you with the formalities.
Domestic and family violence is a phrase that is used to describe the abuse of one partner towards another or family members, including children and extended family. Although very complicated and specific to individuals, in a nutshell, domestic violence can include a range of behaviours that may occur at the same or different times during the course of a relationship. The thing to remember is that while everyone has different experiences in their relationships, domestic violence is essentially about one person trying to maintain power and control over another.
(In my next article, I will talk about these examples in more detail)
Starting the mediation process where there is domestic violence
If you are required to go to mediation, it is very important that you tell the mediation service as much as you can about your personal situation. The service should ask you a series of questions, which relate directly to domestic violence. All mediation services are under a legal obligation to assess everyone’s safety and suitability for mediation. This process is known as ‘screening and assessment’ and services are under an obligation to keep this information confidential, unless there is a risk to a person including children.
In order to decide whether a mediation can go ahead, the Family Dispute Resolution Practitioner must satisfy themselves about the following:
If the mediation service you attend does not seek information of this nature then you should be very wary of proceeding for your own safety. If they do, it is very important for you to be as frank and honest as you can. Mediation services should be able to refer you to support organisations in your area that specialize in domestic violence. If the mediation service decides that it is not appropriate to continue, the Family Dispute Resolution Practitioner may issue a certificate for the court saying (in official format) that it was inappropriate to conduct the proposed family dispute resolution. As I said earlier, domestic violence is very complicated to discuss briefly. Next time, I will provide more detail on what domestic violence is and how it may be possible for some people who are experiencing domestic violence to mediate their dispute rather than going to court.
In the meantime, stay safe, and take care of yourself and your children.Dr. Cate Banks LLB (Hons), B. Com, Ph.D (Law)
Dr Cate Banks, is a Family Dispute Resolution Practitioner based in Brisbane, Australia and a member of the SingleMum.com.au Expert Opinion Panel. To learn more about Cate, please go to her Profile page here