Australia: Separation and parenting orders: The benefits of pre-court mediation

I've separated from my partner, should I attend mediation regarding my children and how do I prepare for the mediation?

When parents separate, one of the key areas they need to consider is what arrangements should be in place for the children. This can include time the children spend with each parent, where and how handover takes place, communication the children have with the parent they are not spending time with, requirements in order for each parent to travel with the children, and communication between the parties regarding the children.

FIRST STEPS

The adversarial nature of Court does not make it the best forum for parents to maintain a good co-parenting relationship. The reality of separating with children means the parents will need to have an on-going relationship for the rest of their lives. The social science research largely suggests that conflict impacts negatively on children, not the separation itself. For this reason it is mandatory for parents to participate in confidential mediation with a family dispute resolution practitioner, prior to making an application to the Court for parenting Orders. There are some exceptions to this requirement such as family violence, child abuse, urgency or inability to participate. Parents are the experts in respect of their children and it is usually preferable for parents to make decisions about their children, rather than a judicial officer who has never met the children.

SETTING YOURSELF UP FOR SUCCESS

To give mediation the best chance of success it is worthwhile to be prepared prior to the mediation. This may include setting out your concerns around parenting matters, ideas for how to address those concerns, your proposals for parenting arrangements and your reasons those proposals are in the best interests of the children. It is often best to avoid past grievances with the other parent and to instead focus on what is best for the children moving forward. You may have concerns about the other party's attitude towards the mediation. If you approach the mediation doing everything you can to engage in meaningful and productive discussion about your children and it is unsuccessful despite your efforts, you can go forward knowing you did everything in your power to put the children first and to avoid Court.

WHAT HAPPENS IF WE CAN'T AGREE?

If mediation is unsuccessful for whatever reason, be it a refusal by the other parent to participate or no agreement could be reached despite genuine efforts to resolve the issues in dispute, the family dispute resolution practitioner will issue both parents with a certificate. This certificate enables the parents to make an application to the Court for parenting Orders. If the mediation is successful you may wish to have the agreement made into parenting Orders in order that it will be enforceable. You can do this by making a Consent Orders Application to the Family Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.