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The interrelationship between an application for parenting orders and mediation


The interrelationship between an application for parenting orders and mediation

Parenting Post Number 2

This is the second of a series of posts in relation to parenting issues, and it principally focuses on the mediation process that ordinarily needs to be undertaken prior to taking any formal action in a court.

If you have not already read the first post of this series, then I recommend that you do so before reading this post.

If a dispute has arisen, or there is an arising dispute, any person who is involved with the care of a child under the age of 18 years or seeks to be involved with that child can make a formal approach to each other person involved in the care of that child to resolve the dispute.

Sometimes a person who has the primary care of a child will initiate that process, depending upon the issues. In most instances in my experience, a person who is not in primary care of that child will initiate the process, but that doesn’t mean that the primary carer can’t initiate that process. An example when the primary carer might seek to initiate the process is if that person is concerned that in other person will try to remove, or will remove a child from that care.

Ordinarily before any formal process can be commenced in a court, then an attempt to resolve the matter must first be undertaken at mediation.

If requested, I can provide mediation, but once I do that, I cannot represent a party who is involved in any aspect of the dispute. So, you need to decide whether to engage me as a lawyer or as a mediator, but if in doubt still contact me as I will help you to make that decision.

There may be circumstances, where it is appropriate to proceed to court process without mediation.

Not every mediator is authorised to issue a certificate under the Family Law Act, and before engaging any mediator, you should ensure that person is an accredited family dispute resolution practitioner to be able to issue the relevant certificate if agreement is not reached and the mediation.

Before the mediation process can commence, the accredited family dispute resolution practitioner must be satisfied that it is appropriate to conduct the mediation. It is not necessary for the accredited family dispute resolution practitioner to speak to each of the parties potentially involved in the dispute before the decision is made that it is inappropriate. The issue of whether the mediation should proceed is a matter entirely for the accredited family dispute resolution practitioner.

If it is considered that mediation is not appropriate, a certificate will be issued to allow the commencement of the court process.

Assuming that it is appropriate for the process to commence, the accredited family dispute resolution practitioner will attempt to contact all other people who are to be involved in the mediation. How that occurs is usually in the discretion of the accredited family dispute resolution practitioner.

If that contact cannot be made, because the accredited family dispute resolution practitioner is unable to contact the other person either because that person refuses to respond to communication or because the current address of that person is not known, the mediation cannot commence, but there is no provision within the Family Law Act for a certificate to be issued.

Assuming that contact is made with the other party, in the event that after appropriate attempts are made to engage in mediation that person is not prepared to do so, the accredited family dispute resolution practitioner may if so minded issue a certificate to the person seeking the mediation, which will enable that person to commence proceedings in the court.

In the event that the other party agrees to take part in the mediation then the mediation will commence.

The process of mediation will only work if each of the persons involved makes a genuine effort to resolve the matter. This genuine effort involves a real and honest attempt and the attendance at mediation should not be seen as a means of getting a certificate to enable the process to be commenced in a court.

The question of whether a genuine effort has been made will depend upon the circumstances and it is a matter within the sole discretion of the accredited family dispute resolution practitioner.

Should mediation commence, there may be some circumstances where an issue arises after the commencement of the mediation process, which makes it inappropriate for the mediation to continue, and in those circumstances.

Should you wish to find out more about what I have set out in this post, please contact me on (07) 4723 4601, or send me an email to the address on my website.


“Liability limited by a scheme approved under professional standards legislation”

The contents of this document are not intended to create any legal relationship between the author and the reader.

The material contained herein is designed to provide you (the reader) with some important but general information and should be read in association with legal advice given to you.

You should not rely or act on this information without seeking legal advice specific to your circumstances.


Cecil Black

10 December 2018


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