Family Dispute Resolution - Parenting Mediation

FA M I LY D I S P U T E R E S O L U T I O N PA R E N T I N G M E D I AT I O N

M ED IATION

Separation and divorce are difficult for everyone in the family, especially your children. The pace at which your children understand and accept separation may be different to yours. Your children will need extra love, care and support during this time, even though you yourself are likely to be struggling too. Some certainty about the future will help children to feel a sense of security about what is happening. Family Dispute Resolution (FDR) can help with this.

Preparing for mediation will help you to get the best out of your time in the joint session.

What can we discuss in parenting mediation?

Things you might like to talk about include: ✓ Living and care arrangements for children ✓ How to improve communication between parents ✓ How holidays and special days will be managed ✓ Child support ✓ Education and co-curricular activities ✓ Health care

Legal advice We can provide you with legal information, such as that set out in this document, but, as your mediator, we cannot give you legal advice. We strongly recommend that you obtain legal advice from a specialist family lawyer at some stage during the mediation process.

When seeking legal advice, we recommend that you ask the following questions: – What is the range of possible outcomes if the matter went to court?

– What is the most likely outcome if the matter went to court?

– What is the time frame for a matter going to court?

– What is the estimated cost of a full trial?

The quality of advice that your lawyer can provide will depend upon the information and instructions that you can give.

As difficult as it may be, try to anticipate your co-parent’s perspective and discuss this with your lawyer.

AGR EEM EN T S, PA R EN T IN G PLA N S AN D CO N SEN T O R DER S

The mediation

Parenting agreement

Allow approximately four hours for the joint session of mediation (ie, the actual mediation itself) with both you and your co-parent present with the mediator.

The structure of the mediation is a bit like a business meeting. We create an agenda of the issues that both parties would like to discuss and then work through each item, with each party having an opportunity to talk and to listen.

A Parenting Agreement sets out the items that were agreed upon during FDR. If unsigned, it operates as a good faith agreement between yourselves, which is not legally enforceable.

Mediator’s opening statement

Parenting plan If signed and dated by each of you, the Parenting Agreement becomes a “parenting plan” (‘Parenting Plan’). A Parenting Plan, although it has some legal significance, is not enforceable and is different from a parenting order which is made by a court. However, if either of you proceeds to court in relation to parenting issues, the court will consider the terms of the most recent Parenting Plan when making a parenting order in relation to your children.

Therefore, there are legal implications to signing and dating this agreement.

Agenda

Explore issues

Private session with mediator

Negotiate

Agree and next steps

Consent orders If you seek further enforceability of a Parenting Plan you should speak to a lawyer about turning your Parenting Plan into Consent Orders. Consent Orders are a written agreement (like your Parenting Plan) that is approved by the court.

Consent Orders can cover parenting arrangements as well as property and financial agreements. Consent Orders have the same legal force as if they had been made by a judge after a contested hearing, it’s just that you have created your own terms.

In working out what your situation requires, think about trust and conflict.

If trust is high, conflict is low and communication is good, a more flexible agreement may work. If trust is low, conflict is high and communication is fraught, you may need a more formal arrangement.

W HAT IS T H E P ROC ESS ?

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Contact

Prepare – we meet with you

Invite

Phone or email us for an initial FREE, confidential half-hour chat. Tell us about your family and your situation as well as the issues that you are experiencing. We can help you work out whether mediation is right for you and your situation.

We will meet with you for a confidential two hour meeting. The purpose of this meeting is for us to better understand the issues that you and your family are facing and to help you prepare for mediation.

We also obliged by law to assess your situation to make sure that mediation will be safe and constructive for both parties at this time. If your matter is unsuitable for mediation or the other party is unwilling to participate, we can issue a s60I certificate at this stage.

We will invite your co-parent to participate in the mediation process.

Although no one is ‘forced’ to mediate, family law in Australia generally requires separated parents to make a genuine attempt to mediate their issues before accessing the court system for parenting matters.

Finances and property Often issues around finances and property overlap with parenting matters. We can also mediate your finances and property – see our Property and Finances Mediation brochure for more information.

4 Prepare – we meet with your co-parent We will meet with the other party for a confidential two hour meeting.

The purpose of this meeting is for us to better understand the issues that they are facing and to help them prepare for mediation. We continue to assess your matter for suitability. If your matter is unsuitable for mediation, or the other party is unwilling to participate, we can issue a s60I certificate at this stage.

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Mediation – joint session

Agreements and next steps

You and your co-parent, along with the mediator, will meet to discuss, and work towards a better understanding of, the issues in dispute. Both parties will be encouraged to share their views and present proposals to resolve the matters raised. We allow four hours for this joint session but can add more hours or sessions if needed.

We will document all items that you come to agreement on, and record them in a ‘parenting agreement’. A Parenting Agreement is not legally enforceable, rather it is an expression of your intentions (see our Parenting Mediation brochure about Parenting Agreements, Parenting Plans and Consent Orders).

If there are a number of items still in dispute, we can either arrange for another session of mediation or issue a s60I certificate.

T HE L EGAL FR AM EWOR K Family Dispute Resolution is part of the family law system in Australia. There are lots of myths and misconceptions about family law. It will be helpful to have some real understanding of what the law requires from us in mediation as well as how a parenting matter is resolved by the court.

Best interests of the child The Family Law Act 1975 (Cth) requires that when making decisions about children, it is the children’s best interests that are the most important, not ours as parents. Children have rights and parents have responsibilities. Children have the right to be protected from physical and emotional harm, abuse and neglect as well as from family violence. In light of this, if it safe to do so, children have the right to a meaningful relationship with both parents.

There are a number of things that you can do to act in your child’s best interests: ✓ REDUCE conflict between you and your co-parent ✓ ENSURE that your child knows that the separation is not their fault ✓ ENSURE that your child knows that both parents love and care for them ✓ ENSURE that your child has ‘true permission’ to move seamlessly between both parent’s homes and be able to enjoy themselves freely with both parents

Equal shared parental responsibility vs equal time The law presumes that it is in the best interests of the child for parents to have equal shared parental responsibility. This does not mean that the child should necessarily spend equal time with both parents. Instead, it means that both parents are equally responsible for the raising of the children and have an equal role in making decisions about major long-term issues that affect their children. The law requires that, where there is equal parental responsibility, parents must consult each other about major long-term decisions. The law does not require parents to consult each other about minor day to day decisions, such as what clothing your child will wear or what they will eat for breakfast that day.

These principles are our starting point for parenting mediation and the framework within which we work.

Best interests of the child

Equal parental responsibility

Mediation Right to a meaningful relationship with both parents

Right to be protected from harm

C O MMUNICAT ION Communication between parents After separation it may take parents some time to get used to having a parenting relationship, rather than being together as a couple. The most beneficial thing that parents can do for their children after separation is to reduce conflict. Sometimes, parents need to create new ‘ground rules’ for communication.

In the interests of your children’s well-being, most parents agree that communication between them should be respectful.

Additionally, you might both decide that all communication should be child-focused and future-focused, rather than about the past or your relationship. What will work best between you both – Phone? Text? Parenting App? Email? How frequently do you want to be in contact with each other? What about in an emergency?

Parent

Child

Parent

Communication between parent and child and to others in the presence of the child It is also important for children to see that even if parents are no longer together, that they respect each other as co-parents.

Therefore, it is common to agree that neither parent will ‘put down’ or criticise the other parent to, or in the presence of, the children, or blame the other parent for things such as the separation or the parent’s current financial situation. This can be really difficult if they are things that you feel, but if you express them to your children, your children can either feel that they must take sides or may become locked in a ‘loyalty bind’.

Sometimes children will behave differently and say things that they know the particular parent wants to hear and will not feel free to say that they enjoyed themselves with the other parent. One goal of separated parenting is for children to feel ‘true permission’ to love and be with each parent and to go, as seamlessly as possible, between homes.

Communication between the child and the parent that they are not currently with You might like to arrange regular time(s) when you call your child when they are with the other parent. Regardless of this, if a child wants to speak to the parent that they are not with, it is important that they feel comfortable to ask to do so.

The most beneficial thing that parents can do for their children after separation is to reduce conflict.

T I ME

Deciding how your child will spend time with each parent Assuming that it is in their best interests to do so, and depending upon the age and development of your child as well as their physical and emotional needs, you may like to consider your child spending equal time with each parent, if it is also reasonably practicable for them to do so.

What does ‘reasonably practicable’ mean?

Examples of equal time arrangements

The ‘2-2-5-5’ Mon

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‘Reasonably practicable’ takes into consideration the logistics and the practicability of your children living equally with each parent. Things that impact the workability of equal time include:

This plan is often works well for primary school-aged children. It has the advantage of regular days of the week with each parent and one weekend with each parent, as well as not being away too long from each parent.

– How far apart each parent lives from the other – Where your child goes to school or day care – The actual livability of each parent’s home for the child – bedrooms etc…

– Each parent’s work schedule – The impact of the arrangement on the child

Remember that it is your child who is being asked to live, and move between two houses – something that we as parents would not necessarily like to do. Try to make it as easy as possible for them to do so.

The ‘week on – week off’ Mon

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This plan has the advantage of fewer ‘changeovers’ for children but does require them to be away from each parent for a whole week at a time. This is more frequently seen with older, high school-aged children. Often the changeover day will be a Friday so that your child has time to ‘settle in’ to the other parent’s household before going back to school on the Monday.

Equal time?

Is it in the child’s best interests?

Is it reasonably practicable?

Substantial and significant time If it is not reasonably practicable for your child to spend equal time with both parents, you might like to consider whether it is reasonably practicable for them to live primarily with one parent and spend “substantial and significant time” with the other.

The law defines ‘substantial and significant time’ as including week day and weekend time as well as holidays and special days.

Children get to spend time with each parent in ‘work’ mode and ‘play’ mode. Substantial and significant time might look like this:

If ✗ no to either

Substantial Less time? & significant time Is it in the child’s best interests?

Is it reasonably practicable?

The ‘9 and 5’ Mon

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Additional time with mum during school holidays, special days etc…

If ✗ no to either

Less time?

What are the details?

Still have equal parental responsibility

OTHER T H INGS TO C ONSI D ER . . .

Changeovers

Holidays and special days

How will drop offs and picks up be done? When will the children be able to move between homes unaccompanied? Changeovers, especially for young children, often require both parents to meet face to face. One of the most stressful times for children is if changeover is unpleasant as any natural anxiety that they have about moving between households is amplified when parents fight at changeover.

Once you have established the pattern of care for your children on ‘ordinary’ days (ie during school term), think about what adjustments need to be made for holidays and other special days – Christmas, New Year, Easter, birthdays, Mothers’ Day, Fathers’ Day etc… Can either parent take the children on a holiday that would impact on the child’s ordinary time with the other parent?

If yes, how long for? How much notice is needed? Can they travel internationally or interstate?

‘What-ifs?’

In thinking about how your child will spend their time with each parent, it is important to consider what will happen for example if one parent (or your child) is sick or has to go away? If there needs to be a change to your arrangement, how much notice do you each need? Do you want to be the first person that the other parent calls? Who is your ‘back up’ if the other parent is unavailable?

Major decisions As co-parents, you are required to consult each other about major long-term decisions concerning your children. For example, which school they will go to, changing names or moving out of the area should be discussed. A new partner might not automatically be a major long-term decision, but it is one that has a big impact on your child if that partner moves in or is present for much of your time with your child. You might like to discuss how you would each ‘introduce’ new partners to your children and in what circumstances. There are also major decisions that are unique to each family – do you both want your child to be vegetarian? Practise a particular religion?

Special days – Christmas, birthdays School holidays Ordinary care

Child support and other expenses

Parenting styles

Child support is separate from any financial or property settlement. Child support is intended to cover the ‘ongoing daily expenses’ of raising your children and is part of parental responsibility. A child support payment seeks to balance the relative income of both parents against the time that they spend caring for the children. The legislation does not define ‘ongoing daily expenses’ and this often becomes a source of frustration for parents, with one parent thinking that a particular expense, such as new school shoes, should be covered by the child support and the other parent believing that it is not. These minor issues can sustain conflict between separated parents. In mediation you can talk about what is ‘covered’ by child support in your family and what isn’t, as well as how you would plan for such extra expenses to be paid.

One of the hardest things for separated couples to get used to is that they can’t control the parenting style of the other parent (unless of course it endangers the health or well-being of the child). There is no requirement at law to negotiate as to how each parent cares for the children on a day-to-day basis.

However, as children benefit from consistency, you may wish to try to agree on some age-appropriate ‘ground rules’, such as the importance of maintaining a routine for very young children, a consistent bedtime, a similar policy on devices and ‘screen time’ or boundaries for teenagers. At a minimum, your child will benefit from understanding that, even if there are differences between routines in each home, each parent is supportive of the other’s routine.

Co-curricular activities How will you nominate and decide upon co-curricular activities for your child? These might include swimming lessons, learning an instrument or Saturday sport. What happens if an activity falls during the child’s time with the other parent?

Your child will benefit from understanding that, even if there are differences between routines in each home, each parent is supportive of the other’s routine.

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