Family Law Mediation
If your dispute involves children, it is almost compulsory that the parties attempt family law mediation before going to court.
Family Law Mediation
After attempting family law meditation you will be issued with a certificate that shows you attended and attempted to mediate, allowing you to file an initiating application in court. This certificate is often referred to as a Section 60I certificate.
When you start proceedings in court, you will be asked to provide a copy of the Section 60I certificate. There are only a few exceptions where you will not need a Section 60I certificate. Only in certain circumstances, you will be able to file an application to the court without having a Section 60I certificate.
Those circumstances are usually if the case is very urgent, or where there is child abuse or domestic violence involved.
If you are involved in a property matter, you are not required to attend family mediation before starting a court application, nevertheless, it is very likely that at some point the court will make an order for you to undertake some form of mediation.
Relationships Australia can provide information on counselling and mediation – they offer family mediation services across Australia.
Family law mediation costs can range from $100 – $2,000 per party.
What is a Section 60i Certificate?
Section 60I certificates are documents signed by registered family law mediator.
Obtaining a certificate is an important part of the pre-action procedure for applicants in parenting cases.
They are used to prove that the divorced couple has attended sessions of family law mediation.
Family law mediation is a process that aims to help couples come to an agreement without going to court.
There are different types of family dispute resolution. For example, mediation and facilitation are both types of family dispute resolution.
These processes are less formal than going to court and are generally much less draining, both financially and emotionally, on the people involved.
Once the certificate has been filled in and signed by the family law mediator, it can be presented to the court in an application for orders.
Family law mediators are registered with the Attorney-General’s Department.
Is mediation compulsory in family law?
Family law mediation is compulsory for a parent that wants to file an application to go to court to seek orders in relation to a child.
Parenting orders are the most common type of application to the court.
Even if someone is seeking to change parenting orders that already exist, a section 60I certificate is still required.
Needing a certificate means couples are also required to attend family law mediation.
This is compulsory in the family law system to encourage couples to reach decisions together in a cooperative fashion and create the solution to their parenting issues among themselves.
The process of family law mediation involves:
- Identifying which issues the parties wish to resolve
- Each party listening to the other’s point of view
- Discussing relevant information
- Exploring different options
- Testing out possible solutions
- Putting any decisions or agreements in writing
A section 60I certificate shows that the parties could not reach an agreement through family law mediation.
What is Section 60i ?
Section 60I is a section of the Family Law Act 1975.
It is in Part VII of the Act, which is the part that covers the different types of orders that can be sought in relation to children.
Parenting orders might be about who the child lives with, who they spend time with, who they communicate with or the allocation of parental responsibility.
Section 60I of the Act is specifically about attending family dispute resolution before applying for a parenting order, also called a Part VII order.
The purpose of this is to ensure the parties involved make a genuine effort to resolve their dispute before making an application to the court.
The Act states that a court cannot hear an application for a Part VII order in relation to a child unless the applicant files a certificate from a registered family dispute resolution practitioner.
If both parties have agreed on how to resolve their parenting dispute and are now making consent orders, a section 60I certificate is not necessary.
Subsection 8 of section 60I explains the different kinds of certificates a practitioner can issue.
Family Mediation and Section 60i Certificates
Couples only obtain these certificates at the end of a period of family dispute resolution when this method of dispute resolution has not worked.
The final option, therefore, is going to court.
Many people do make agreements during the family dispute resolution process and do not need to obtain a section 60Icertificate to file a court application.
This is because section 60I certificates are to show that no result has come from family dispute resolution and the ex-partners cannot make a decision together in this manner.
A section 60I certificate requires the practitioner to select the circumstances that best describe the situation in question.
There are five different types of family dispute resolution certificates, each giving a different outcome as specified in the Act:
- One party could not attend family dispute resolution because of the other party’s failure or refusal to attend, therefore it could not go ahead
- The registered practitioner decided that family dispute resolution was not appropriate for this case
- All parties attended and made a genuine effort to contribute and reach an agreement
- All parties attended but one or both of them did not make a genuine effort to contribute to resolving the dispute
- The family dispute resolution began but the registered practitioner later decided that it would be inappropriate to continue
The family dispute resolution practitioner is responsible for determining whether a person has made a genuine effort to come to an agreement.
This often depends on the individual circumstances, but the practitioner may take into account each party’s willingness to take part in discussions and to make compromises.
If two people do not manage to reach an agreement that does not necessarily mean that they did not make a genuine effort.
Outcomes 2 and 5 refer to circumstances in which family dispute resolution is not appropriate.
The practitioner may deem family dispute resolution inappropriate in cases of a risk or occurrence of child abuse, a history of family violence or the emotional, psychological and physical health of the parties.
Family dispute resolution is compulsory under the law, however, some exceptions can be made.
Exceptions to family law mediation
There are several sets of circumstances that count as exceptions to the otherwise required provision of a section 60I certificate.
One of the most significant exceptions is in cases involving domestic violence.
This is one instance in which a family law mediator would determine it inappropriate to begin or to continue family law mediation sessions.
If the court determines that there has been child abuse or family violence by a party, or that there is a risk of child abuse or family violence by a party should the court application be delayed, the application will be exempt from the requirement to obtain a certificate.
Other exceptions include if the matter is urgent or if one party is unable to participate effectively in family dispute resolution.
A person may be unable to participate effectively due to, for example, illness or another incapacity to do so or geographical remoteness from the registered practitioner.
Therefore, it would be impractical to attend family law mediation.
The final main types of exceptions are where a person is applying for procedural orders, interim orders or consent orders and where one party has shown serious disregard for a court order made in the last twelve months.
The judge is the person who determines what qualifies as an “urgent” matter or “serious disregard.”
It is up to the judge, not the family law mediator, to decide whether one of the exceptions applies.
If the practitioner believes it is not appropriate to continue, they can provide the certificate showing that outcome.
However, if the court does not accept that an exception applies, they may make an order to attend family law mediation.
Applying for exception – Family Mediation
To apply for an exemption for any of the reasons above, the applicant must file an affidavit with their application to the court.
An affidavit is a written statement that the applicant swears to be true.
It is witnessed and signed by an authorised person such as a Justice of the Peace, a solicitor or a barrister.
In the affidavit, the applicant writes out their personal details and their knowledge and understanding of the circumstances that allow them an exception from providing a section 60I certificate.
The affidavit is therefore filed in place of the certificate and allows the court to accept the application so that the process can go ahead.
How to prepare for mediation family law
It is important to adequately prepare yourself for family law mediation.
It can be your chance to obtain an outcome that is tailored to your needs and preferences and can save yourself time, money and stress involved with going to Court.
Here are some tips to help you get the best out of the process.
1. List your Priorities
Write a list of what it is that you want to achieve from the mediation.
In your list, you should prioritise the issues in order of importance.
Why are they important to you? Consider where you are ‘coming from’.
You must be able to explain your reasons at the mediation.
Some examples may include: receiving an apology from the other party, getting a financial settlement, or maintaining an amicable relationship with your former spouse.
2. Plan for roadblocks in the mediation
Make sure you also think about what the other people involved in the dispute may want out of the mediation.
Brainstorm and write down the possibilities.
Ask yourself what would you be willing to compromise on.
It may be helpful to talk to someone you trust who is not involved in the dispute.
They can give you an outside perspective on the issues involved.
3. Speak to a family lawyer
It is advised to seek legal advice before attending mediation.
This is so you can make a good decision regarding any agreements; especially if they involve legal rights and responsibilities.
A lawyer can advise you as to what the law is and how it applies to your situation.
Additionally, a lawyer can tell you the likely outcome if the dispute proceeds to Court, and how much time and money going to Court would cost.
4. Tune your emotions
You should not ignore how you feel about the process.
It is normal and understandable to feel hurt, angry, stressed or anxious about the dispute and attending family law mediation.
You can work through these emotions through options such as talking to a trusted outsider to the dispute or writing down your feelings.
Think about how your feelings might affect you during in the mediation.
You can consider asking to have a support person at the mediation if you feel vulnerable.
If it is required, you can also ask the mediator for a break during meditation if you feel overwhelmed.
5. Practice your communication skills
You should be careful of your tone and the way you communicate during mediation.
It is not a place for aggressive tactics and game-playing.
Instead, you should get into the right headspace and enter the meditation with good faith.
You should show the mediator and other parties involved that you are making a genuine effort to discuss and compromise.
You can practise using calm language.
Ensure you ask questions if you don’t understand anything.
Try not to interrupt the mediator or other parties when they are speaking.
Listen attentively at all times when other people are speaking.
When it is your turn to speak, explain your point of view clearly and positively.
For example, instead of saying ‘You make me very angry and frustrated’, you can say ‘I feel upset when you….’
SPEAK TO ONE OF OUR LAWYERS.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.