Contents. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner

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1 MEDIATION BOOKLET A practical guide to assist women to prepare for mediation, understand their rights and answer commonly asked questions about the mediation process with particular reference to family and domestic violence situations

2 Contents INTRODUCTION...5 PREPARATION OF THIS BOOKLET... 5 ACKNOWLEDGMENTS... 5 DISCLAIMER... 5 COPYRIGHT NOTICE... 6 WHO IS THIS INFORMATION FOR?... 7 SOCIAL MEDIA CAUTION... 8 DONATION FORM... 9 PART 1 MEDIATION and FAMILY DISPUTE RESOLUTION WHAT IS MEDIATION?...10 WHAT IS FAMILY DISPUTE RESOLUTION?...10 WHAT DOES A MEDIATOR DO?...10 WHERE DO I FIND A MEDIATOR?...11 IS MEDIATION FREE?...11 THE CURRENT LAW ABOUT MEDIATION...12 DO I HAVE TO GO TO MEDIATION?...13 YOU CAN APPLY TO THE FAMILY COURT FOR AN EXEMPTION FROM ATTENDING MEDIATION IF:...13 MUST I PROVIDE MY HOME ADDRESS ON COURT FORMS?...14 WHAT IS A FAMILY MEDIATION CERTIFICATE?...14 WHAT WILL THE CERTIFICATE SAY?...15 PART 2 DOMESTIC VIOLENCE AND MEDIATION WHAT IS DOMESTIC VIOLENCE?...16 In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 2

3 CAN I STILL ATTEND MEDIATION IF I AM OR HAVE BEEN AFFECTED BY FAMILY AND DOMESTIC VIOLENCE? DO MEDIATORS SCREEN FOR SAFETY? PART 3 ALTERNATIVES WHAT CAN I DO IF THE IDEA OF MEDIATION IS DISTRESSING FOR ME? WHAT SHOULD I DO IF I BELIEVE MEDIATION IS UNSAFE FOR ME?.. 24 MEDIATION AND SHARED PARENTING WHAT TIME IS REASONABLE? WHY IS THIS IMPORTANT? HOW DO I KNOW IF MY PROPOSALS ARE REASONABLE AND PRACTICAL? PART 4 ATTENDING MEDIATION THE MEDIATION PROCESS WHAT SHOULD I KNOW ABOUT ATTENDING MEDIATION? IS MEDIATION A CONFIDENTIAL AND PRIVATE PROCESS? WHAT ARE THE EXCEPTIONS TO CONFIDENTIALITY? WHAT HAPPENS NEXT? HOW DO I BEST PRESENT MYSELF DURING MEDIATION? WHAT HAPPENS AT THE FIRST MEDIATION SESSION? WHAT ARE THE IMPORTANT POINTS TO REMEMBER WHEN ATTENDING JOINT SESSIONS? CAN I HAVE A LAWYER REPRESENT ME AT MEDIATION? CAN MY NEW PARTNER OR OTHER FAMILY MEMBERS BE PART OF THE MEDIATION SESSION WITH ME? In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 3

4 CAN CHILDREN BE INCLUDED IN MEDIATION?...38 WHAT DO I DO IF MEDIATION HASN T WORKED OR IS NOT SUITABLE FOR ME?...38 HOW IMPORTANT IS THE INFORMATION ON THE CERTIFICATE TO THE COURT?...39 WE HAVE REACHED AGREEMENT IN MEDIATION, WHAT NOW?...39 WHAT IF I HAVE ALREADY HAVE A FAMILY COURT ORDER?...40 HOW DO I MAKE THE AGREEMENT LEGALLY BINDING OR ENFORCABLE?...41 WHAT IS THE DIFFERENCE BETWEEN CONSENT ORDERS AND A PARENTING PLAN?...41 PART 5 LEGAL ADVICE AND OTHER RESOURCES LEGAL ADVICE...42 CHILDREN S ISSUES / PROPERTY SETTLEMENT... Error! Bookmark not defined. FAMILY AND DOMESTIC VIOLENCE HELP...44 COUNSELLING...46 TENANCY SUPPORT...46 OTHER RESOURCES... Error! Bookmark not defined.. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 4

5 INTRODUCTION PREPARATION OF THIS BOOKLET This booklet was prepared by the Women s Law Centre of WA Inc. This is the fifth edition of the Mediation booklet - published 11 October Women s Law Centre WA (Inc) ACKNOWLEDGMENTS Many thanks to volunteer Lynette Hill for her assistance and contributions. Some information was based on MEDIATION on Children s Issues in Family Law published by Women s Legal Service Inc Queensland. We would also like to acknowledge the assistance provided by our CLC-FRC Network partners at the Perth Family Relationship Centre. DISCLAIMER The booklet is a guide only and is not intended to replace legal advice. We believe that the information about the law and mediation processes in this booklet is correct at date of publication. However, please refer to the section How important is the information on the Certificate to the Court on page 39 and be aware that the law regarding costs is scheduled to change in Women s Legal Centre WA Inc accepts no responsibility for any loss suffered by any person who uses or relies on the information contained In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 5

6 in this booklet, or for any loss which may arise due to error or omission in the information. Legal advice from a lawyer should be obtained. COPYRIGHT NOTICE Material in this booklet is protected by Australian copyright law. All rights are reserved. The material may be used only on the following conditions: Copies of the material may be reproduced for individual noncommercial use. The Women s Law Centre WA Inc copyright notice must be included in any copy made. No material may be altered in any way without the prior written permission of the Women s Law Centre WA Inc. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 6

7 WHO IS THIS INFORMATION FOR? This booklet is for women with child/ren and who have separated from their partner or are thinking of separating. This booklet also deals specifically with family and domestic violence situations. Many women feel unprepared and anxious about mediation/family dispute resolution. This booklet seeks to answer commonly asked questions about mediation. The booklet has information about: Who must attempt mediation Who may not have to attempt mediation (can be exempted from mediation) Family and Domestic Violence o Alternative mediation services How mediation works What is expected of you How you can get the best out of mediation Tips to help you consider the best interest of your child/ren; Where to get legal advice Where to get help for domestic violence In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 7

8 SOCIAL MEDIA CAUTION We strongly recommend you do not use social media or internet sites, eg Facebook or Twitter, to discuss or comment on your separation and/or negotiations involving your children. You should also be careful about what you say in s and text messages. s, text messages and posts on facebook are considered to be in writing and can be used as evidence in court proceedings, such as being attached to an affidavit filed in the Family Court. It is important not to discuss or publish information on public websites relating to your children, your separation, negotiations or court proceedings. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 8

9 WLCWA is a not-for-profit community legal centre funded by the Commonwealth Attorney General s Department to provide quality legal services for women of WA. We also gratefully accept donations. Donations over $2.00 are tax deductable and receipts can be provided upon request. Donations in the form of cash or cheque can be made in person at our office or via mail. Your donation will help us continue to assist women like you. DONATION FORM Name Address (where to send receipt) Amount $ In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 9

10 PART 1 MEDIATION and FAMILY DISPUTE RESOLUTION WHAT IS MEDIATION? Mediation is used in all sorts of situations where people are unable to reach an agreement to resolve a dispute. The people involved are called the parties. In Family Law the parties are usually the parents of the child/ren, but can also be a grandparent or other significant family member. WHAT IS FAMILY DISPUTE RESOLUTION? In Family Law, mediation is called Family Dispute Resolution. Family Dispute Resolution is the term used for services, such as mediation, that can help people who have separated to come to an agreement about arrangements for their child/ren. WHAT DOES A MEDIATOR DO? A Mediator is an independent and unbiased person who assists the parties to talk about their dispute. They help the parties to identify the issues and to work towards finding a way of resolving the dispute. A Mediator is a neutral or unbiased person who assists in negotiations and conflict resolution. A Mediator who works in family law areas is called a Family Dispute Resolution Practitioner (FDRP). The Mediator or In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 10

11 FDRP is an independent and unbiased person and does not take sides or make decisions for you. S/he is there to help you and your former partner identify and work through the issues about which you disagree. The aim is to assist you and your former partner to find solutions to those identified problems and to arrive at an agreement that is in the child/ren s best interest. WHERE DO I FIND A MEDIATOR? Mediation services for family law disputes involving child/ren are provided by a range of organisations; for example, Family Relationship Centres and Legal Aid as well as private providers. Under the Family Law Act 1975 only Mediators who are registered FDRPs can issue Certificates (see Page 14/15 for more on certificates). You should ask Mediator if they are a registered FDRP. You can search the Attorney General s website at for lists of organisations and individuals that provide mediation/ Family Dispute Resolution services near you. You can also get the same information by calling the Family Relationships Advice line on IS MEDIATION FREE? In July 2011 Family Relationship Centres introduced fees for people above a certain income level. However, people with Commonwealth In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 11

12 Healthcare Cards or people receiving Social Security benefits are entitled to 3 hours for free. You should ask about fees when you contact a Family Relationship Centre. Other services are means tested in accordance with your income. These services include: Anglicare Relationships Australia Centrecare Legal Aid WA There are also a number of private registered Mediators/FDRPs available through the Attorney General s website (Find a Family Dispute Practitioner). Private providers set their own fees. Check with the service provider before engaging a mediator. THE CURRENT LAW ABOUT MEDIATION Not all people with child/ren who separate or divorce are able to agree about arrangements for their child/ren, such as where they will live, or the time they will spend with each parent or other family members. Family Law in Australia recognises that parents, rather than the courts, are often the best people to know what is best for their child/ren. Therefore, before applying to the Family Court for parenting orders, most parents must genuinely try to sort out parenting arrangements through mediation. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 12

13 DO I HAVE TO GO TO MEDIATION? If you want to apply to the court for a parenting order, or to change an parenting order, you will usually first need to get a Certificate which confirms that an attempt at mediation was made. In that sense mediation is compulsory. The purpose of the Certificate is to prove to the court that a genuine effort was made to come to an agreement. The Mediator is the person who issues the Certificates. However, in certain circumstances the Mediator may decide that mediation is not appropriate (see more about certificates on page 14/15). Even if you are already in the Family Court, a Judge or Magistrate might still send you back to mediation. This is because the court considers that parents are the best people to decide on arrangements for their child/ren, rather than a Judge or Magistrate who has not met your child/ren. In most circumstances it is best for the Court to be a last option, except where your solicitor has recommended that you apply to the Court for an exemption. YOU CAN APPLY TO THE FAMILY COURT FOR AN EXEMPTION FROM ATTENDING MEDIATION IF: there has been, or there is a risk of abuse or family violence; or the matter is very urgent e.g. your child/ren may be at immediate risk of abuse, or if they have been removed from In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 13

14 your care or you may be having difficulty in getting your child/ren back from a visit. If your situation is urgent seek legal advice to make an urgent application to the Court, or see the Duty Lawyer at the Family Court; or you are unable to take part because of a disability or live in a remote area where services are not available; or the application concerns a serious breach of a court order, made less than 12 months ago; or you are applying for Consent Orders. If you do not wish to attend mediation because of domestic violence or child abuse and you make an application to the court you will have to fill in a form which tells the court that a Mediator has given you information about services and options available to you, including options about alternatives to court. MUST I PROVIDE MY HOME ADDRESS ON COURT FORMS? No, you can use a care of address as the court does need to have some way of contacting you. WHAT IS A FAMILY MEDIATION CERTIFICATE? If parties do not reach an agreement, the Mediator will give you and the other party a Certificate. Some services will not automatically provide a Certificate so you must ask them to send it to you. You only need to send a short letter or giving them your name and address and In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 14

15 asking that they send the Certificate to you. Keep the Certificate in a safe place because if you want to make an application to the Family Court you will need to attach this Certificate to your application. You can only file a certificate that a mediator has issued within 12 months of the last family dispute resolution or attempted family dispute resolution. The purpose of the Certificate is to prove to the court that a genuine effort was made to come to an agreement by using mediation. WHAT WILL THE CERTIFICATE SAY? The Certificate gives information to the Court about what happened at the mediation. The Mediator will tick one of the following options on the Certificate: both made a genuine effort to sort out an agreement; or one or both of you did not make a genuine attempt to come to agreement; or the other person did not turn up or did not wish to participate; or in the opinion of the Mediator, mediation is not appropriate; or the mediator did not believe it was appropriate to continue. If you are exempted from attending mediation because of domestic violence or child abuse the mediator must also advise you about services and available options, including alternatives to court action. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 15

16 PART 2 DOMESTIC VIOLENCE AND MEDIATION WHAT IS DOMESTIC VIOLENCE? Domestic violence is not just about physical violence. Family and domestic means violent, threatening or other behaviour by a person that coerces or controls a member of the person s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include (but are not limited to): (a) (b) (c) (d) (e) (f) (g) (h) (i) an assault a sexual assault or other sexually abusive behaviour stalking repeated derogatory taunts intentionally damaging or destroying property intentionally causing death or injury to an animal unreasonably denying the family member the financial autonomy that he or she would otherwise have had unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support preventing the family member from making or keeping connections with his or her family, friends or culture In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 16

17 (j) unlawfully depriving the family member, or any member of the family member s family, of his or her liberty. Women sometimes don t recognise that they live or have been living with family and domestic violence. Sometimes, particularly with emotional or psychological abuse, you may not recognise the just how bad the abuse was until you are out of the situation. This is because this type of abuse wears you down and affects your self belief, confidence and how you function. Generally, family and domestic violence is considered to be present when one person tries to gain or continue power or control over another person by one or more ways listed below. Family and domestic violence is often grouped into three common areas: Physical abuse Emotional abuse/psychological abuse Sexual abuse. PHYSICAL ABUSE Harming a person You can suffer physical abuse in many different ways such as hair pulling, slapping, pushing and shoving, skin twisting, being hit, punched or kicked or being thrown against things or being hit with objects. You should see a doctor if you have been abused. A record of your injuries may be useful if you go to court. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 17

18 Damaging property This type of abuse occurs when something you own, or the house, furniture or car is damaged or broken. It can also be breaking plates, punching holes in the wall, or cutting up your clothing or photographs. EMOTIONAL AND PSYCHOLOGICAL ABUSE Verbal abuse This happens when the abuser s behaviour or comments makes you feel useless or stupid or insane or generally damages your self confidence. This type of behaviour can also result in you believing that everything that goes wrong is your fault. Psychological abuse includes threats to physically harm you, kill you, or your family or family pets. Social abuse This is where the other person restricts your freedom by preventing you from freely mixing with friends and family or being put down in front of them. It can also be where your car use is restricted or not allowed or you are prevented from going out to work or earn your own money. It also includes demands to account for all of your time and money you spend or everything that you do. Psychological abuse Includes behaviour and comments designed to put you down and destroy your self confidence. They might make you believe you are stupid, unattractive, mentally unwell or In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 18

19 worthless. You may be blamed for everything or made to believe that everything that goes wrong is your fault. Spiritual abuse This is where the other person damages your selfidentity by behaviours such as criticism of your spiritual beliefs. It can also be by the abuser quoting religious text to justify abusive behaviour. Financial abuse You might not have any say in how the family income is spent or not be provided with enough money or access to money for family needs, such as being expected to live off impossibly small amounts of money. You may be prevented from keeping any money that you earn, or from having access to this money. SEXUAL ABUSE This type of abuse includes any forced and/or unwanted sexual contact with the person or anyone else which you do not want, or do not consent to. Domestic violence happens in all sections of the community and in all kinds of relationships. It is harmful not only to the person being abused but also to any child/ren in the family. See page 44 for a list of where to get help if you are affected by domestic or family violence. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 19

20 CAN I STILL ATTEND MEDIATION IF I AM OR HAVE BEEN AFFECTED BY FAMILY AND DOMESTIC VIOLENCE? It is very important that you tell the mediation service and the Mediator if there has been violence. It is also very important that you feel safe and are safe before, during and after mediation. If you make any agreement with your ex-partner, it is important that the agreement is safe for you and your child/ren. You should also consider that it may be in your best interest to get legal advice as you may qualify for an exemption (see pages 14 about Certificates and exemptions). DO MEDIATORS SCREEN FOR SAFETY? Your first appointment, sometimes called an intake or intake interview should always be done with you separate from your ex-partner. Sometimes this might be done over the telephone. At this first appointment, the Mediator will hear your story and ask you lots of questions to help him/her work out if mediation is suitable for your situation. Different Mediators have different ways of asking questions, but what they want to know is: whether there has been any family and domestic violence. If there is or has been, they also need to know if there are any risks to you if you attend mediation. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 20

21 if you are able to stand up for your own or your child/ren s needs when negotiating with your ex-partner. possible risks to the child/ren and if you are afraid of violence to you or your child/ren in the future. This is the best time for you to speak up about anything at all that is worrying you or if you do not understand something. Don t be frightened or embarrassed to ask the Mediator any questions that you want answered. The Mediator can give you a Certificate if he/she considers mediation to be unsafe or not the best way of resolving your dispute, or they can refer you to one of the other family dispute resolution services talked about on page 23. See more about Certificates on page 14. However, there are instances where parties who have experienced family violence do attend mediation. This may be an option for you, or it may not. Some women have found the experience empowering, others find it destructive or unsafe. There might be challenges involved in attending mediation when you have experienced family and domestic violence. If your confidence has been damaged or you are physically afraid you may not be able to say things that you want to say and, as a result, you may feel pressured to agree to things that: In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 21

22 are not in the child/ren s best interest; are unworkable or unreasonable; may expose you or your child/ren to ongoing threats, harassment or violence. In order for you to obtain the best and safest outcome for your child/ren, it is important that you: seek legal advice before making an appointment; and if you choose to proceed find out as much as you can about the mediation process; consider the best type of mediation to suit you (as set out at page 23). prepare for the mediation (the information in this booklet will assist you). In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 22

23 PART 3 ALTERNATIVES WHAT CAN I DO IF THE IDEA OF MEDIATION IS DISTRESSING FOR ME? Safe and successful mediation requires both parties involvement and cooperation in resolving the dispute about their child/ren. Tell the mediator why this may be distressing for you. If you feel unable to be in the same room with the other party, tell the Mediator as there are other ways of doing mediation. Some of the other ways are: Shuttle mediation In this type of mediation the parties are in different rooms so you and the other party are not together at any time. Staggered mediation In this situation your appointment will be on a different day or time to the other party s appointment. This way you will not be present at the mediation service at the same time. Telephone mediation This is generally offered to you if you live in a remote area or you or the other party are in prison. Alternative Dispute Resolution This service is available at Legal Aid WA where both you and the other person are each provided with a lawyer to attend the session with you. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 23

24 WHAT SHOULD I DO IF I BELIEVE MEDIATION IS UNSAFE FOR ME? If there has been family and domestic violence you should seek legal advice as you may be entitled to an exemption from mediation. Your situation may be suitable for one of the other ways of resolving your dispute such as Alternative Dispute Resolution or Coordinated Family Dispute Resolution (discussed above). If you approach a Family Relationship Centre or similar service, you may be screened as not suitable for mediation due to reasons of safety. In this case the Mediator could issue you a Certificate, allowing you to go to the Court, or refer you to one of the services provided by Legal Aid as listed above on page 23. If you have received a Certificate, it is recommended that you speak to a lawyer before going to Court. If mediation does take place, a Mediator can stop the process if they feel it is inappropriate to continue. For example, if the parties are unable to negotiate, the mediation process will stop and you will be issued with a Certificate allowing you to apply to court, or you may be referred to one of the Family Dispute Resolution services provided by Legal Aid WA. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 24

25 MEDIATION AND SHARED PARENTING The law requires most separated parents to make a genuine effort to make parenting arrangements. The law also recognises that it is best for children if parents can communicate and co-operate after separation. The starting point for the Family Court of WA is that parents have what is called equal shared parental responsibility for the child. This means that both parents are responsible for the care and welfare of their child, including making important decisions about the child, e.g. health care and schooling. This term does not mean equal time. WHAT TIME IS REASONABLE? It may be reasonable for parents to share care and have equal time. Equal time means that the child/ren spend the same amount of time with both parents. The most common form of equal time is week about, eg one week with you and the next week with the other party. If equal time is not reasonable and not practical, parties should consider substantial and significant time which means child/ren spending time with the parent they do not live with, at times that include more than just every second weekend and half of school holidays. It should be time such as weekends, week days, and holidays as this allows that parent to be: In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 25

26 o o involved in the child/ren s daily routine and involved in occasions and events of significance to both parent and child/ren. A 50/50 arrangement is not always practical, for instance where someone does shift work or has fly-in-fly-out employment. There are other creative ways of spending time but they must be reasonable and practical (see more page 27) in other words will they work now and in the future and in the best interests of the child/ren? WHY IS THIS IMPORTANT? When the Family Court is considering what is in the best interests of the child/ren they will consider the benefit to the child of having a meaningful relationship with both parents; as well as the need to protect the child from physical or psychological harm. The Family Law Act states that the right of the child to safety and protection from physical or psychological harm is paramount. It is now very clear that the safety of children is more important than the issue of maintaining a meaningful relationship with both parents. If you have any concerns about the safety of your child you need to consider what their best interests are. You should give greater weight to needing to protect children from physical or psychological harm over the benefits of the child having a relationship with the other parent. The Family Court will also consider the extent to which a parent has taken or not taken the opportunity to: participate in making decisions about major long term issues in relation to the child, In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 26

27 to spend time and communicate with the child; and the extent to which each of the child s parents has fulfilled, or failed to fulfil, the parent s obligation to maintain the child. HOW DO I KNOW IF MY PROPOSALS ARE REASONABLE AND PRACTICAL? Tips for considering what may be reasonable and practical for now and in the future The distance between the two homes and how it will affect the child/ren, eg their friendships and schooling. The ability of parents to make workable arrangements to deal with practical problems when child/ren have two homes, eg school uniforms/ school work left in the other s home. Will disputes arise and how will this affect the child/ren? The ability of parents to communicate and resolve difficulties say about methods of discipline, health or homework. Will disputes arise and how will this affect your child/ren? The impact of any arrangements on the child/ren. This could mean you look at how the child/ren were cared for before separation. Were both parents involved in hands-on care of the child/ren and if one parent was not, can they adjust and how will the child/ren react? In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 27

28 As well as thinking about the issues that may arise when child/ren have two homes, consider if it will be possible for you and the other party to sort out these problems. Consider if they are likely to cause disputes and, if your child/ren will witness these arguments, how it will affect them. Was there domestic violence and how that will affect all of the issues mentioned above? In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 28

29 PART 4 ATTENDING MEDIATION THE MEDIATION PROCESS What things must the Mediator tell me about as part of the mediation? It is important to remember that the Mediator does not take sides in the dispute. Therefore, be careful not to confuse the information that they give you as being their personal view. It may not be. The Mediator will ask you if you have had any legal advice, checking that you are aware that the current legislation says that if it is in the child s best interest and reasonable and practical that each of you should consider the possibility of the child/ren spending: 1. Equal time with each parent, and if this is not appropriate 2. Substantial and significant time with you or their other parent WHAT SHOULD I KNOW ABOUT ATTENDING MEDIATION? Before you start mediation, your Mediator must tell you: that they cannot give you legal advice unless she or he is a also a legal practitioner that almost everything said by the parties in the mediation session is confidential, but explain the situations where it is not In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 29

30 about Certificates about the mediation process about your rights (including your right to complain about the service) his or her qualifications, and fees charged If you are trying to make parenting arrangements, the Mediator must give you information about parenting plans and other services. IS MEDIATION A CONFIDENTIAL AND PRIVATE PROCESS? Where the parties are engaged in shuttle mediation or telephone mediation anything said by one party can be shared with the other party. This is because the process is conducted as if both parties are in the same room. In most cases mediation is confidential and private. This means that the Mediator cannot share information about you or the other party with anybody not involved in the mediation process. However, there are circumstances where confidentially will not apply in any mediation process. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 30

31 WHAT ARE THE EXCEPTIONS TO CONFIDENTIALITY? The Mediator must disclose anything said in a mediation session if he or she reasonably believes that the disclosure is necessary for the purpose of complying with a law, eg mandatory disclosure of suspected child abuse. The Mediator may disclose a communication made in family counselling if he/she reasonably believes that the disclosure is necessary for the purpose of: protecting a child/ren from the risk of physical or psychological harm preventing or lessening a serious and imminent threat to the life or health of a person reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person preventing or lessening a serious and imminent threat to the property of a person reporting the commission, or preventing the likely commission, of an offence involving intentional damage to the property of a person or a threat of damage to property assisting an independent child/ren s lawyer to properly represent a child/ren s interests. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 31

32 In addition, a family counsellor may disclose a communication with the consent of the party who made the disclosure, where that person is an adult, or where the disclosure was made by a child/ren who is under 18 years, if parents consent to the disclosure. If agreement cannot be reached the matter may be referred to the Family Court for a decision. In any of the above circumstances the Mediator may report their concern to the relevant authorities. If child abuse or a risk of child abuse is reported then that information may be used in court. WHAT HAPPENS NEXT? If you are accepted as suitable for mediation the other parent will be sent an invitation letter and given a number of days to respond. If there is no response and you still want to try mediation then a second letter will be sent. Depending on your situation, you may be referred to other services before starting mediation. As you have read on page 14 if the other party does not turn up or refuses to participate the Mediator can issue you with a Certificate which allows you to apply to the Family Court for Parenting Orders. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 32

33 HOW DO I BEST PRESENT MYSELF DURING MEDIATION? Be prepared. Get legal advice before you attend mediation so you know what would be a reasonable agreement in your situation; Approach the session in a child focused way, by putting your child/ren first in any proposal you make; Remember the overriding principle under the Family Law Act is the best interests of the child/ren; Think through what you are going to say when you are first asked to talk. The Mediator will always ask you to tell him/her what the issues are for you and how you see them best resolved. You can prepare an answer beforehand; Stay calm. Nervousness is expected but keep your anger under check. If you feel yourself becoming upset or intimidated ask for a break/private session; Remember your rights. You have the right to be heard, for your opinions to be respected and to ask for what you want. Be firm, clear, but respectful of the other person s perspective even though it is likely to be different from yours; Just as you have the right to be heard, so does your ex-partner. Be mindful not to talk over them or interrupt. Watch your negative body language, such as facial grimaces and eye rolling. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 33

34 Trust your own instincts. You are under no obligation to agree to any particular proposal put forward by your ex-partner, particularly if you feel bullied or are unhappy with what is being proposed. Remember that you are expected to make a genuine effort so be sure to raise alternative proposals by suggesting what you think would work for the child/ren. Explain why you think this would be in their best interest. It is okay to request legal advice before you finalise what you agree or give your consent. You should do this. You can request to come back to a further session. Be careful what you sign. Get legal advice first. Only sign when you are sure that what you have agreed is in the child/ren s best interests and you are certain it will work now and in the future. You can check whether it will work by reality testing. Ask the Mediator to help you with this or you might ask questions like, How are you going to manage to have the child/ren every Monday and Tuesday night when you are on shift work or fly in fly out? Stay child focused at all times. WHAT HAPPENS AT THE FIRST MEDIATION SESSION? You can expect the Mediator to speak first. This is to explain to you and the other party the process. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 34

35 The Mediator will generally ask you and the other party to separately discuss what you think are the main issues as you see it, and what you would like the outcome to be. Identifying the main issues The Mediator will try to assist you both to identify what the main issues are for each of you. A list of those issues can provide some structure for the mediation session. The Mediator will next assist you both to work through each of the issues. It is okay to add issues as the session progresses. It is natural to be nervous at the beginning, causing you to sometimes forget important points that you would have otherwise put on the issue list. It is okay to take notes during the mediation process and to bring in notes that you have prepared beforehand. You and the other party, in turn, get to talk about how you each feel and express your points of view. The Mediator will try to get each of you to consider what is in the child/ren s best interests. You may find it hard to talk directly to the other party. This is normal. The Mediator will assist you, sometimes by saying what you have said in another way, (called reframing ) or by encouraging you to tell the other person directly how or why you feel a certain way. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 35

36 The issues of equal time and substantial and significant time might be raised by the Mediator, for you to consider at this point (refer to definitions at page 25). Private Sessions Sometimes the Mediator may stop the session so he/she can talk to you away from your ex-partner in a private session. They will then speak to the ex-partner separate from you. They might do this to check how you are going. This is also an opportunity for you to tell the Mediator about any concerns you have, either about the process or about the behaviour of the other person. You can ask for a break at anytime if you are finding the process upsetting. During the private session, the Mediator might also seek to challenge your thinking or provide different options for you to think about. This does not mean that the Mediator does not agree with you or is siding with the other person. What he or she is doing is using a technique to change the energy of the session, and often find a resolution. When back in the session with the other party, the Mediator might seek to challenge each of your thinking in a similar way. It is important to remember that they are an independent person, focused on assisting each of you work towards some agreement and to find solutions. Generally sessions run for two hours. Sometimes several sessions are required before an agreement can be finalised. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 36

37 WHAT ARE THE IMPORTANT POINTS TO REMEMBER WHEN ATTENDING JOINT SESSIONS? You are both there to try and work out arrangements that are in the best interest of the child/ren. You can: write up and bring written notes into the mediation session, eg an outline of your issues ask for a break/private session at any time Tell the Mediator if you have any concerns by requesting a private session ask to have the session in the absence of the other party, i.e. through shuttle mediation (refer to page 23). CAN I HAVE A LAWYER REPRESENT ME AT MEDIATION? You should seek legal advice before and after mediation and before signing any written agreements. Generally, lawyers do not take part in mediation. However as mentioned on page 23 both parties are assisted by lawyers in the services provided by Legal Aid WA. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 37

38 CAN MY NEW PARTNER OR OTHER FAMILY MEMBERS BE PART OF THE MEDIATION SESSION WITH ME? In general, only the parents or full time carers of child/ren are present at mediation sessions. Arrangements can be made to include other people such as grandparents if an agreement is reached. In this booklet we talk about mediation between you and the other party. Usually the other party is the other parent but it could be between you and someone else who has had full time care of your child/ren. CAN CHILDREN BE INCLUDED IN MEDIATION? No, but a family counsellor may talk with your child/ren when you and the other parent are attending mediation. This will only happen with parental consent. WHAT DO I DO IF MEDIATION HASN T WORKED OR IS NOT SUITABLE FOR ME? You may be able to seek the assistance of a lawyer to directly negotiate arrangements. Or can apply to the Family Court for assistance in resolving your dispute. You will need the original Certificate to be able to file a Court application. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 38

39 HOW IMPORTANT IS THE INFORMATION ON THE CERTIFICATE TO THE COURT? The Judge or Magistrate will take special interest in the box that the Mediator has ticked on your Certificate. If the ticked box says that you or the other party have not made a genuine effort then a costs order may be made against whichever party has not made a genuine effort. For example if your ex-partner has not made a genuine effort and you have legal fees to pay, the court may order that the other party pay those fees. Similarly if it was you who did not make a genuine effort and the other party had legal fees to be paid, the court could order that you pay those fees. Please be aware that the law regarding costs is scheduled to change in It is advisable that you to seek legal advice about these changes before you engage in mediation. Not making a genuine effort may make it harder to get legal aid. How you act or conduct yourself during mediation is important (see page 33 How do I present myself during mediation for tips). WE HAVE REACHED AGREEMENT IN MEDIATION, WHAT NOW? A PARENTING PLAN is an agreement that is signed and dated by you and your ex-partner which sets out how the child/ren will be cared for In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 39

40 and supported. It is not a legal document and not legally enforceable. However, it can be used as evidence in court (see more below/on page 41). Ask the Mediator to provide a written copy of the agreement for you and your ex-partner. This may assist you both to be clear about what you agreed to. BE CAREFUL! You should be careful about signing anything without taking time to think things over and get legal advice. You should not be expected, and do not have to, sign anything at the time of mediation. You have the right to go away and think about the agreement before signing it. You can come back to the Mediator with changes to put forward. You can ask a lawyer to look over the written agreement before you sign it. WHAT IF I HAVE ALREADY HAVE A FAMILY COURT ORDER? If you have an existing Family Court order and you later sign a Parenting Plan it can have the effect of changing the terms of your court order, even though you have not filed this with the court. In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 40

41 It is also a good idea to get some further legal advice before signing any agreements. This is because: Once you sign the agreement it becomes a Parenting Plan; Parenting Plans sometimes get used in Court as evidence; and arrangements for child/ren can have consequences for division of property and for child support assessments. HOW DO I MAKE THE AGREEMENT LEGALLY BINDING OR ENFORCABLE? An agreement reached in mediation is usually written up as a Parenting Plan which is signed and dated by both parties. To be legally binding and enforceable it needs to be filed with the Family Court as Consent Orders. It is recommended that you get legal advice or the assistance of a lawyer to make this application because it is important that the agreement you send to the Court is written in the correct legal format. WHAT IS THE DIFFERENCE BETWEEN CONSENT ORDERS AND A PARENTING PLAN? A Consent Order, once filed with the Family Court, becomes a legally binding and enforceable court order. Parties can apply to the Court if the orders are not followed. A Parenting Plan is not a Court order. It is a voluntary written agreement that sets out your intentions regarding your child/ren. However, should the Court need to make a decision about your child/ren in the future, it will give consideration to your parenting plan. There are no penalties for breaching a Parenting Plan. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 41

42 PART 5 LEGAL ADVICE AND RESOURCES LEGAL ADVICE Albany Albany Community Legal Centre 77 Albany Hwy, Albany. Ph (08) , Freecall Armadale Bunbury Fremantle Armadale Information and Referral Service 28 Sexty St, Armadale Ph ( Bunbury Community Legal Centre 101 Victoria St, Bunbury. Ph (08) bunburyclc.com.au Fremantle Community Legal Centre Queensgate Building, William St, Fremantle. Ph (08) Fitzroy Crossing Marninwarnitura Family Violence Prevention Legal Service Lot 284 Balannjangarri Rd Fitzroy Crossing WA Ph ( Geraldton Family Advocacy Service 103 George Rd, Geraldton. Ph (08) Geraldton Resource Centre Lotteries House 114 Sanford Street. Ph (08) In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 42

43 Gosnells Kalgoorlie Gosnells Community Legal Centre 2232 Albany Hwy Gosnells. Ph (08) Goldfields Community Legal Centre 23 Maritana St, Kalgoorlie. Ph (08) , Karratha Pilbara Community Legal Service, Welcome Lotteries House, Suite 1, Morse Court, Karratha, WA 6714 Ph (08) No7/Lot 3642 Balmoral Road, Karratha WA 6714 Ph (08) Kununurra Mandurah Newman Kimberley Community Legal Centre, Kununurra 4 Papuawa St, Kununurra. Ph (08) , Free call Peel Community Legal Services 2 Sutton St, Mandurah. Ph (08) Pilbara Community Legal Service, Newman House, Cnr Iron Ore & Calcott Sts, Newman WA Ph (08) , , Joondalup/Mirrabooka Northern Suburbs Community Legal Centre o Joondalup Office Building 1, Edith Cowan University 270 Joondalup Drive, Joondalup, WA 6027 Ph: (08) o 10 Cobbler Place Mirrabooka. Ph (08) In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 43

44 Perth Legal Aid WA Info Line: Ph The Women s Law Centre of WA, 445 Hay Street, Perth, (08) , Freecall Citizens Advice Bureau, 25 Barrack St Perth. Ph (08) Sussex St Community Law Service, 29 Sussex St, East Victoria Park. Ph (08) Rockingham SCALES Community Legal Centre (Southern Community Advocacy Legal & Education Services) Suite 3 St Nicholas Community Centre 14 Council Avenue Rockingham. Ph: (08) Roebourne Pilbara Community Legal Services, 3 Padbury Street, Roebourne WA Ph (08) South Hedland Pilbara Community Legal Services, Lotteries House, 2 Leake St, South Hedland, WA 6722 Ph (08) Family Court of Western Australia Information and video Consider the Children, are available for viewing on the Family Court s website at: under About the Family Court - Online Information Sessions. Family Relationships Online Ph Legal Aid WA Ph In this booklet when we talk about a Mediator we are talking about a Family Dispute Resolution Practitioner 44

45 FAMILY AND DOMESTIC VIOLENCE HELP Domestic Violence Legal Unit (Legal Aid of WA) Ph (08) / Aboriginal Family Law Services Phone (08) for information about offices in regional locations Women s Domestic Violence Helpline 1 (08) / (Country) Crisis Care (Free Call) Crisis Care can arrange help including temporary accommodation, protection for children, financial aid, counselling and support services Domestic Violence Advocacy and Support (DVAS) Central Ph info@whfs.org.au DVAS Central is a free service which helps women who have experienced, or are at risk of domestic violence access support DVAS provides people with a safe and friendly environment to access advocacy, legal and DCP services. Homelessness Advisory Service: Ph Multicultural Women s Advocacy Service (MWAS) Ph info@whfs.org.au MWAS promotes the safety of women, with or without children, from culturally and linguistically diverse backgrounds. The service is available to women who are recent arrivals or long-term residents who have experienced, or are at risk of domestic violence. In this booklet when we talk about Mediation we are talking about Family Dispute Resolution. 45

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