A question I often get from my clients is ‘do I have to go to mediation before Family Court?’.
There are some circumstances where attending family mediation is required before you can take your case to Family Court, but as always, each case is treated uniquely. Let’s take a look at when you have to attend mediation before going to Family Court, and when you can go to Court without first attempting family dispute resolution.
What Is Family Dispute Resolution?
Family dispute resolution is a voluntary process where separating couples can negotiate towards resolving their disputes in order to reach an amicable settlement. This is with the assistance of a Family Dispute Resolution provider also known as a mediator.
When there are children of under 18 years of age involved, it is mandatory under Australian Family Law, to first attempt mediation before going to the Family Court. This is to encourage separating parents to resolve their disputes on their own, without the need of going to Court, paving the way for an amicable post-separation relationship. It also happens to be the most successful way of divorcing in Australia.
Family Court & Parenting Plans
Parenting plans are usually mutually agreed upon by the parents, and can include all matters pertaining to the care and well-being of their children. Being voluntary written agreements, they can be made during or without attending Family Dispute Resolution, before going to Court.
Parenting Plans cost nothing and are best suited for divorced parents who maintain an amicable relationship, but the downside is that they are not legally enforceable in the event of either party not complying with any of their terms.
Family Court & Parenting Orders
Although Parenting Orders are also voluntary written agreements, they have to be approved by the Court which requires the parents to first attend Family Dispute Resolution. Parenting Orders are suited for separated couples, who do not have an amicable relationship. They are legally binding and enforceable, serving as a deterrent for either party from contravening any of their terms.
They are not as flexible as Parenting Plans. Parenting Orders can also be amended to reflect any changes in circumstances, but have to be approved by the Court.
Can You Get An Exemption From Attending Family Mediation?
The Court acknowledges that family mediation may not always be an appropriate way of separating, in certain circumstances. These include:
- When there is a history or threat of abuse or violence in a family, or there’s a risk to a child
- Either party is physically or mentally unable to attend
- Being in a remote location far from a mediator
- The matter is urgent
- Either party has contravened a Court Order during the past 12 months
- Past behaviour by either party suggesting a disregard for their obligations of the Order
In such circumstances, you will need to submit the relevant Family Dispute Resolution Form, and once accepted, an Exemption Certificate will be issued, allowing you to proceed to the Court. This process can be fairly complex and advice is strongly recommended before an application is submitted.
What Happens Next If We Resolve Our Issues At Family Mediation?
Once you manage to resolve all your issues, the mediator will draw up the agreement, which you both may choose to take to a lawyer for a second opinion, or sign there and then. It will then be submitted to the Court for approval, upon which you become legally divorced or separated.
If family mediation sounds like a process that may suit your separation circumstances, get in touch with me today for a free and confidential discussion. I can help you work out whether attending family mediation is an appropriate solution for you and your ex.