Parenting Disputes and Mediation

KEY TAKE-OUTS

• Going to court should be the last resort in a parenting dispute. 
• Parents should always have the child’s best interests in mind when negotiating agreements. 
• Parties must attend mediation and make a genuine attempt to come to an agreement before going to court. 
• There are circumstances where mediation may not be appropriate. 

Why is litigation considered the last resort in parenting disputes?

As children are involved in parenting disputes, it is best if these matters are resolved outside of court. In any parenting dispute, the best interests of the child must be the primary consideration of all parties involved. In Australia, there is a focus on settling parenting matters outside of court and the merger of the Australian Family Court and Australian Federal Circuit Court has further emphasised this. 

The legal process for resolving parenting disputes

The first step in a parenting dispute is for one party to contact the other to begin written negotiations. Often this is done through Sydney Lawyers as it allows for more effective communication. 

Is mediation compulsory? If no agreement is reached through these written negotiations, before parties can file to go to court, they must participate in mediation.

What is mediation?

Mediation is a forum where parties can communicate in a safe and open environment to discuss issues and try to reach an agreement. 

Mediation involves a neutral and independent third party (the mediator) who can assist parties reach agreements, communicating, identifying issues, finding common ground, and highlighting various possible solutions. However, a mediator is not able to provide legal advice, determine facts or provide outcomes. 

Do I need a lawyer for mediation?

Parties can instruct a lawyer to be involved in their mediation. This may be beneficial to parties who feel they may be intimidated or pressured by or through the mediation process.

Mediation is a voluntary and confidential process.

When is mediation required in parenting disputes?

Under section 60I of the Family Law Act 1975 (Cth) parties are required to attend mediation and make a genuine attempt to reach an agreement. A certificate providing for this must be provided to the court. 

Mediation, however, is not appropriate in all circumstances. Section 60I(9) of the Family Law Act outlines that mediation is not required when the parties are applying for consent orders, when there has been or there is a risk of abuse to the child or where there has been or there is a risk of family violence.  

What parenting or consent orders can be made during mediation?

If mediation was successful, parties can enter into a parenting plan or consent orders. 

Parenting plans are non-binding agreements that are signed by the parties. They are entered into voluntarily and provide parents with the flexibility to make changes to the document as they see required. Although they are not binding, if parties do attend court in relation to a parenting dispute, any parenting plan in place will be considered by the court. 

Consent orders are formal document which is approved and sealed by the court. When considering draft consent orders, the court must ensure the child’s best interests are promoted by the document.

Both kinds of orders can set out matters such as how parental responsibility is shared when each parent will care for the child, and how special days such as birthdays, easter and Christmas, are to be allocated between parents. Practical considerations such as where the parents live and work can also be addressed. 

What happens if a court-mandated parenting order is breached?

When a parenting order, made by the court, is breached – the party can file a contravention application to inform the court the other party is not complying with the order. The penalty imposed for the contravention will depend on the severity and frequency of the breach. A person may be awarded more time to compensate, be made to attend a parenting education program, be required to enter into a bond requiring them to perform acts for up to 2 years, a fine be imposed on them or, in extreme cases, be imprisonment.

Can orders be changed?

Once an order is made, the court can change the orders where both parties consent or where there is a significant change in the circumstances (Rice v Asplund 1979).

A court will only change orders in these circumstances as it is expected that a parent will facilitate and encourage a child’s contact with the other parent. Additionally, orders are in place to ensure the child has a meaningful relationship with both parents.

What if mediation is unsuccessful in parenting disputes?

If mediation is not successful, either party can start proceedings with the court through an initiating application and supporting documents. 

What does the Court consider when making parenting orders?

If a parenting dispute is resolved in court, the court must consider s 60CA and 60CC of the Family Law Act. These sections require the court to consider making orders which promote a meaningful relationship between the parents and the child and protect the child from any psychological or physical harm. Additionally, the court can consider the child’s view although the weight given to these views will depend on the age of the child, any previous relationship the child has had with the parties, how a change to the parenting circumstances will affect the child and the capacity of the parent to provide for the child.