Mediation is one of the best ways to come to an agreement with your ex about parenting children after separation.
It gives the parents a chance to talk openly and honestly about what they think is best for the child (or children) going forward. And the mediator can be expected to ensure that the communication is respectful and focused on achieving an outcome both parties can be happy with.
Of course, sometimes a mediation is not appropriate. This includes circumstances where:
- There have been allegations of family violence and one or both parents don’t feel safe having a mediation
- One person is incapacitated and unable to effectively participate in the mediation (such as by reason of serious mental illness)
- The parties have attempted mediation several times before – including in the last year – without success
- There are reasonable grounds to refuse mediation
BUT WHAT IF YOUR EX PARTNER REFUSES MEDIATION?
In Australia, if you are a single mum and your ex won’t participate in mediation, you have two options.
FIRST OPTION: NO ACTION
Firstly you can take no action, and continue with your parenting arrangements the way they are. This may mean there is some kind of stable regime for the child (or children) spending time with the other parent. It may mean the arrangements are ad hoc. Or it can even mean there is no time for the other parent with the child at all! Of course, the extent to which you can live with the consequences of no set agreement for parenting agreement depend on your particular case.
If you think the child or children are safe in your care, and an informal parenting arrangements can work for you and your child (or children), this may be suitable for you.
You are under no obligation to give into demands from the other party or put in place any arrangement you have not agreed to and which is not confirmed in Court Orders. It is also not the job of the police in any State or Territory of Australia to intervene in parenting disputes where there are no allegations of violence or any allegations that a crime has been committed.
If you see a great need to have stability and certainty as to parenting arrangements in the form of Court Orders, you may be disappointed the mediation hasn’t happened. Mediation is entirely voluntary and you cannot force your ex to participate.
SECOND OPTION: A COURT APPLICATION
But if you really want or need formalised parenting arrangement, or you believe a formal parenting arrangement is best for the child (or children) your second option is to bring a Court Application, so that a Judge can make Orders setting out what the parenting arrangements will be.
Situations where a parent may think a Court Application regarding parenting is necessary include where Court Orders are likely to:
- Minimise conflict between the parents
- Result in the child (or children) building a relationship with the non-resident parent
- Help remove risks in either parent’s house hold (such as no drinking alcohol to excess whilst the children are there, no smoking around the children)
- Establish common ground regarding the child (or children’s) needs (getting them to school and extracurricular activities on time, for example) and providing stability for them generally
COURT PROCEEDING AND THE SECTION 60I CERTIFICATE
In this situation, an accredited Family Dispute Resolution Practitioner (FDRP) will usually be the one to confirm by way of an official “section 60I certificate” that mediation is not going ahead because a party has refused to participate.
The FDRP may also determine mediation isn’t appropriate for some other reason, and they can issue a formal certificate to cover other circumstances (such as the family violence example referred to above).
The section 60I certificate is effectively your ticket to commence Court proceedings, and the certificate will be valid for a year. Once you have that certificate, you should contact a lawyer specialising in family law to discuss your situation with them.
The lawyer will then explain to you the process of Court proceedings, timelines, costs, and the likelihood that you will be able to achieve your desired parenting Orders through a Court Application.
GETTING LEGAL ADVICE IF YOU EX REFUSES MEDIATION
Remember, if needed, it is not too difficult to find free first legal advice regarding family law matters, from family lawyers in private practice who provide a free first advice session, from Legal Aid or a Community Legal Centre (or Community Legal Service) in your state or territory. They will help you assess whether your ex has reasonable grounds to refuse mediation and what the next steps might be.
The Law Society in your State or Territory will also be able to refer you to a family lawyer who provides free first advice for family law matters.
EXCEPTIONS TO MEDIATION BEFORE APPLY TO COURT
There are also exceptions where it is not necessary to attempt mediation with your ex at all before applying to Court for parenting orders.
These rare circumstances relate mainly to circumstances where there is a high level of risk to a parent or children such as where
- There has been recent or ongoing family violence of a serious nature or where a child or parent cannot be found)
- The matter is so urgent that the Court needs to act immediately (such a risk the child will be taken out of the country, or if a child needs urgent medical care)
If these kinds of circumstances exist in your case, then the Court may excuse you from attempting mediation or obtaining a section 60I certificate altogether. And the Court may instead allow your case to be heard by a Judge despite you (or your ex) not following the usual process.
Again, this is something a specialised family lawyer can advise you on, and assist you with.
To conclude: If your ex thinks he has reasonable grounds to refuse mediation
So, as you can see, the family law system in Australia is geared towards doing everything possible to ensure that parents jointly make decisions and arrangements regarding the care of their children. However, it is also well equipped and developed to deal with situations where a party refuses to participate in a mediation.
Finally, please remember that for any danger and immediate risk of harm to you or your child (or children), your first phone call should be to 000, and you can speak to your preferred family lawyer or mediator later.
