Statutory Requirements

The 2006 Regulations under the Family Law Act require each mediation and family dispute resolution client to be given the following information at least one (1) day before family resolution is started. Sub regulation 62(3) requires us to give each party to the family dispute resolution a written statement that sets out the following information.

What is family dispute resolution or mediation?

The process of family dispute resolution is one by which the parties involved, together with the assistance of the family dispute resolution practitioner:

• isolate issues in the dispute; and
• develop and consider options to resolve those issues; and
• if appropriate – attempt to agree to 1 or more of those options; and
• if a child is affected – attempt to agree to options that are in the best interests of the child;

If the dispute involves a child:

• that each parent has parental responsibility for the child, within the meaning of section 61B of the Act; and
• that the best interests of the child are the paramount consideration in any decision that affects him or her;

It is not the role of the family dispute resolution practitioner to provide the parties with legal advice (unless the family dispute resolution practitioner is also a legal practitioner). However, procedural advice will be given.

When is mediation the right process?

Family dispute resolution may not be appropriate for all disputes, particularly if a dispute involves violence that renders one party unable to negotiate freely because of another’s threats;

• Family dispute resolution must be attended if a certificate is required under section 60I of the Act, before applying for an order under Part VII of the Act;
• A party has the right to obtain legal advice at any stage in the family dispute resolution process;
• A party has the right to terminate the family dispute resolution at any time.

Is mediation mandatory?

Normally, mediation is not mandatory. However, if the dispute includes matters relating to the parenting arrangements for your children which fall under Part VII of the Family Law Act, then mediation becomes compulsory. The Family Law Act requires that these disputants (usually parents) obtain a certificate from a registered “family dispute resolution practitioner” before commencing court proceedings about children under Part VII of the Act. Regulation 63(g)-(h) under the Family Law Act states:
if a person wants to apply to the court for an order under party VII of the Act, the family dispute resolution practitioner may provide a certificate under subsection 60I(8) of the Act, including a certificate to the effect that the person:
did not attend family dispute resolution due to the refusal, or the failure, of the other party or parties to the proceedings to attend; or
attended family dispute resolution with the other party or parties to the proceedings but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;
if a certificate under subsection 60I(8) of the Act is filed, the court may take it into account in considering whether to make an order under section 13C of the Act referring the parties to family dispute resolution or to award costs against a party under section 117 of the Act.

What degree of confidentiality?

Provided section 10J of the Act applies, evidence of anything said, or an admission made, at family dispute resolution is not admissible:

• in any court (whether exercising federal jurisdiction or not); or
• in any proceedings before a person authorised by a law of the Commonwealth or a State or Territory, or by the consent of the parties, to hear evidence.

The process of mediation and family dispute resolution has a degree of legal confidentiality with a list of exceptions, as set out in s10H of the Family Law Act.

A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.

A family dispute resolution practitioner must disclose a communication if the practitioner reasonable believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:

• If the person who made it is 18 or over – that person; or
• If the person who made the communication is a child under 18:
• each person who has parental responsibility (within the meaning of Part VII) for the child; or
• a court.

A family dispute practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:

• protecting a child from the risk of harm (whether physical or psychological); or
• preventing or lessening a serious and imminent threat to the life or health of a person; or
• reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
• preventing or lessening a serious and imminent threat to the property of a person; or
• reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
• if a lawyer independently represents a child’s interests – assisting the lawyer to do so properly.

A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.

A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).
Evidence that would be inadmissible because of subsection 10J is not admissible merely because this section requires or authorises its disclosure.
This means that the practitioner’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.

In this section communication includes admission.

What are the qualifications of this mediator?

I hold a degree in Law. I am also an accredited Family Dispute Resolution Practitioner. I am a registered Family Dispute Resolution Practitioners under the Family Law Act.

What is the cost of mediation?

Fees charged for the mediation are $300 per hour (plus GST), usually shared equally between the parties, unless agreed otherwise in writing.

Other information the mediator is required to tell you about parenting plans?

If the mediation involves consideration of parental responsibility for children, then the parties must consider use of a parenting plan as one helpful way to make arrangements for the children’s futures with each parent and extended family (s63DA(1); (5)). The mediator will be encouraging you to view the dispute through the eyes and emotions of the children; and through the lens of what current research suggests is helpful for each child at different ages and stages. (See brochure on Parenting Plans at www.familyrelationships.gov.au).

Possible reconciliation?

If there is a reasonable possibility of reconciliation of the parties to the marriage, the mediator will be encouraging each part to address that possibility carefully, perhaps with the assistance of an appropriate counsellor (s12C). See www.familyrelationships.gov.au for family counselling services, or contact the Family Relationship Advice Line on 1800 050 321.

What if there has been violence?

If there has been any violence or threats of violence between the parties or towards children, it is essential that you indicate the details to the Mediator -

NO VIOLENT ACTS
VIOLENT ACTS HAVE occurred as follows:
DATE    EVENT    (List the acts to the Mediator.)

If there has been any violence, the mediator will give information and advice about resources available.

What if you are dissatisfied with the services provided by the mediator?

You should go through the following steps:

• Phone or email the mediator and arrange a time to discuss in person or by phone your concerns.
• If still not resolved, then write out your concerns and send these to the mediator.
• If still not resolved within 5 days contact with the mediator’s complaints officer:

Mr Rob Grant
Grant & Associates,
PO Box 657
Everton Park Queensland
Phone: (07) 3353 6081