If you are separating and there are young children of the relationship, attending mediation is often a very useful first step.
Mediation is a process involving both parties and an independent person (‘mediator’) who is present to assist parties in vocalising their concerns and wishes, and coming to a jointly-agreed position.
When parties separate, questions of where the children should live and who with or whether the children’s living arrangements should be equally shared between the parties, are all questions which must ultimately be answered and dealt with.
We can advise you on mediation providers and locations.
In relation to living arrangements and ‘spend time’ arrangements, mediation is usually required before either party can seek the assistance of the court by way of filing an application for orders. This is unless the application to the court is for consent orders, which have been agreed between the parties.
At mediation, the aim is to reach an agreement between the parties for the children which can be documented by way of a ‘parenting plan’. This plan is not a legally enforceable document, but it provides structure to arrangements with the children, and a starting point for parties to adopt. It is also able to be provided to the court as evidence of previously agreed arrangements in relation to the children, where a matter proceeds to litigation. The mediation centre will provide a certificate that mediation has taken place between parties.
If mediation takes place but the parties cannot come to an agreement, despite the assistance of the mediator, or if a party refuses to take part or does not respond to a request for mediation by the other party, the mediation centre is also authorised to provide a certificate confirming mediation has been attempted. This certificate is issued to both parties and entitles either of the parties to file in court to ask the court to make orders in relation to the children. The certificate is valid for 12 months.
Applying to Court After Mediation
If parties attend mediation and agree on a parenting plan but one (or both) of the parties subsequently find the plan does not work in practice or is not in the best interests of the children, the mediation certificate issued at the time of mediation is sufficient for accompanying the filing of an application with the court, where the certificate is not more than 12 months old.
When is Mediation not appropriate?
Mediation is not appropriate where there are serious allegations of family violence. Parties who wish to obtain orders in relation to the children, but do not wish to attend mediation, can attempt to finalise orders by way of negotiation or seek leave from the court to allow a court application to be filed without the requirement of the mediation certificate.
Property matters can also be the subject of mediation, however due to the fact mediation agreements are not formal, legally-enforceable documents, they are useful more in the way they can generate free discussion between parties and an attitude of negotiation. As your legal advisors, we would always recommend you first seek legal advice as to your potential entitlements regarding property.
Please call our office on (03) 9379 0877 to book a no-cost 30-minute consultation. We are here to answer your questions – in plain English – and give you guidance on ‘where to next’.
Please note – this advice is general-in-nature. You should seek legal advice for your individual circumstances, before acting.