Upon the breakdown of a relationship where there are children, if the parents are unable to reach agreement between themselves as to the parenting arrangements for the children, then there is a requirement to participate in mediation prior to contemplating any Court proceedings.
In the community there is a large number of service providers of mediation, most notably Family Relationship Centres which receive government funding to provide a few hour’s free service. The service provided by family relationships centres generally excludes lawyers from participating.
If properly and carefully managed, mediation of parenting issues can not only address the legal issues as to what the parenting arrangements should be, but it can also address other non legal issues which will have a profound impact of the future development of your children.
An example is a recent case we were involved in. Our client, the father of 2 children, came to us after his former wife commenced court proceedings seeking parenting orders. No mediation had been organised prior to the commencement of court proceedings. Our client had been lead to believe elsewhere that he had no option but to litigate the matter. We took a different view after listening to the history of the parenting arrangements post separation, and of the needs of the parties of the children. It was recommended that the parties participate in child inclusive mediation through a private service provider, with the input of a child consultant.
After consulting with the other party’s lawyer, we organised for the parties to be interviewed by the mediator to assess their suitability, and the manner in which the matter would be approached. It was agreed that given the history of conflict between the parties and other issues that the parties’ lawyers would participate in the conference, and that the parties would not be in the same room as one of another. It was also agreed to conduct child inclusive mediation be child inclusive, whereby the children would be interviewed by the child consultant prior to the conference, and the child consultant would provide the parents with feedback about how life was for the children post separation.
When the parents were given feedback from the child consultant it was somewhat. However, the feedback was necessary because the parents had no idea of how their children viewed their world, of the impact upon them of the separation and of their behaviour towards one another, and most importantly the risk it posed to the children’s development towards adult life.
Without hesitation it was agreed the parents would go into family therapy to address various issues concerning themselves and the children as recommended by the child consultant. Whilst this was underway it was agreed that alterative parenting arrangements would be trialled and possibly further child inclusive mediation would be pursued upon the family therapy running its course. It was agreed all round that proceeding to a judicial hearing was in nobody’s interest.
By taking a carefully managed approach and addressing the non-legal/social issues, the parties were embarking upon a pathway which has the best chance of leading to a more positive development and future for their children post separation. If the parties merely litigated the matter to a contested hearing, then the Court would not be able to address or rectifying any non-legal issues as between the parties, nor, their children’s future.
This approach will not work in every case. However, despite a level of conflict between the parties, they were genuinely interested in achieving an outcome that would be the best for their children.
Craddock Murray Neumann has a specialised family law section with two Accredited Specialists in Family Law, one a former Registrar of the Family Court of Australia. For assistance telephone Dominic Wilson on (02) 8268 4000.