The Family Court versus Mediation | Family Law Mediator

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What is the Family Court process in parenting matters?

The litigation process is lengthy, costly, adversarial
Parents are the best persons to make a decision for their child, yet the court process does not support this

Adversarial litigation is a lengthy process to which there are many disadvantages. To commence proceedings in the Family Court, one party files an Initiating Application. Prior to filing this application, there may be a requirement for compulsory Family Dispute Resolution to take place (click here for further information). There is also a duty of disclosure imposed on the parties, whereby they must provide copies of relevant documentation to the other party as a part of the pre-action procedures. For financial matters, these are listed on the Family Court website. For parenting matters, these are listed on the Family Court website.

The other party will then file a response to the initiating application, and the Family Court will set an initial hearing date. There are often delays of a number of months before this initial hearing due to the large number of matters that the Family Court deals with.

At the initial hearing, the Family Court will review the issues and make procedural orders, which may include:

Referring the parents to family counselling;
Arranging a Case Assessment Conference;
Arranging a Conciliation Conference;
Requesting a Family Report be completed; and
Appointing an Independent Children’s Lawyers.

These are all matters that are scheduled over a period of time before a trial. If the parties cannot resolve the issues and proceed to a trial, significant legal costs are incurred and it can often be two years from the time of the initial hearing to the trial.

What are the disadvantages of going to the Family Court for Parenting Orders?

Lengthy delays, cost and the adversarial process are massive disadvantages of the litigation process, especially when compared to mediation:

Legal costs of trial can be astronomical, from solicitor’s expenses, barrister’s costs, expert report, family reports, and property valuers’ expenses, leading to expenses of upwards of $50,000. The costs of mediation may, at first, seem greater than the Family Court process at first (a minimal filing fee at Family Court, as opposed to several hours of mediation); however, once the first bill from your lawyer is received, it will become apparent that mediation is much more cost-effective;
Delays of months to years before the parties receive final orders is emotionally taxing on parties, since they are not free to move on with their lives, as they are financially embroiled in a dispute with their ex-partner; in contrast, mediation does not have these lengthy time delays and can be arranged at the parties’ earliest convenience;
The drain on emotional resources, especially with the entire language of the court process (such as “Applicant” and “Respondent” and “other party”), can pit the two ex-partners against one another in the adversarial process;
Especially where there is a child involved, it is essential that the child remains the focus of the entire process and that arrangements are made in the child’s best interests. A judge or registrar of the Family Court does not know your child. Therefore, any order made by the judge or registrar may not take into account the arrangements that are practical for your family. The best decision-makers for a child are the child’s parents. When litigating, it is easy to lose focus on this, whereas mediation is extremely beneficial for keeping the focus on the child’s best interests, with the mediator assisting the parents to make these decisions together.

What is Child-Inclusive Mediation (or Child Informed Mediation)?

The focus is on the child’s best interests
A Child Consultant allows the child to “have a say”

Child-Inclusive Mediation (sometimes referred to as Child-Informed Mediation) is a practice model where the child (aged five years and older) is included, to a limited extent, in the mediation process, thereby placing particular focus on the best interests of your child, with all discussions and agreements being tailored around this focus.

The Child-Inclusive Mediation process is as follows:

Each parent has a confidential intake session to provide background information and discuss what issues need to be resolved;
Each parent has a confidential parent session with a qualified Child Consultant (a qualified and specially-trained child psychologist);
The Child Consultant makes the decision whether or not to speak with the child (who must be aged five years or older), which occurs only where both parents have provided written consent to this;
If the Child Consultant decides to proceed, the Child Consultant meets with your child to gain their views and feelings about the separation through age-appropriate discussion and play-based activities. The child is advised that just because they want something to happen does not mean that it will happen, but that everyone’s thoughts and feelings will be considered as important and taken into account;
During the first part of the mediation, the Child Consultant provides to the parents a feedback, only where the child has consented to particular wishes being made known to their parents. The mediation then proceeds as any other mediation, although with the feedback and therefore the child’s best interests as the primary focus.

This process is much more empowering to your child than the litigation process, as the child is able to express their views in a safe environment, thereby allowing them, to a limited extent, to be a part of the decision-making process (however, it does not place them in a position where they are required to make a decision, which is an emotionally upsetting position for a child to be in between their parents). This ensures that the focus of the entire mediation remains on the child.

We provide a Child-Inclusive Mediation process as part of our Family Dispute Resolution practice.

What is Child-Focused Practice?

If Child-Inclusive Mediation is not considered suitable for your child, or if they are too young to engage in a session with the Child Consultant, the Child Consultant can provide information about age-appropriate and developmental-appropriate decisions that would be in your child’s best interests. Therefore, the focus remains on the best interests of your child, thereby ensuring that any arrangements that are made at mediation keep that focus at the forefront.

Conclusion

At the end of the day the choice of mediation or litigation is a personal one, but you should always take into account the financial cost of each process, as well as the emotional cost to you and your child.

Our mediators act as a neutral third party assisting parties in reaching agreements. To remain impartial and unbiased throughout the mediation process, our mediators do not engage in legal practice or act as lawyers or provide legal advice in any way. Furthermore, Family Mediation Direct provides mediation services only. Family Mediation Direct is not a law firm, does not engage in legal practice, does not act as lawyers, and does not provide legal advice in any way.

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DISCLAIMER: The information contained on this website is for general guidance only. No person should act or refrain from acting on the basis of this information. Professional legal advice should be sought based upon your particular circumstances, because laws and regulations undergo frequent changes.