SingleMum.com.au Expert Opinion Panel
Dr Cate Banks – Family Dispute Resolution Practitioner
Mediation and Domestic Violence
Section 60I certificate information
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.
What is domestic violence?
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.
Examples of domestic violence:
- Physical abuse – hitting, slapping, punching
- Verbal abuse – put downs, threats
- Financial abuse – refusal of money, limited say in how family money is spent
- Social abuse – isolation from family and friends
- Sexual abuse – forced or unwanted sexual contact
- Psychological abuse – name calling, brainwashing
- Spiritual abuse – denying religious beliefs, using religious texts to derogate
- Property damage – damaging or breaking your property
- Pet abuse – violence or killing family animals
(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:
- The history of domestic violence
- The likely safety of the people involved
- Equality of bargaining power between both people
- The risk of the child or children suffering abuse
- Emotional psychological and physical health of both people
- Any other relevant issues
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)
Vocational Graduate Diploma in Family Dispute Resolution
Graduate Certificate in Dispute Resolution