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Conflict Resolution Service


Family Disputes

PLEASE NOTE THIS PAGE ON 'FAMILY DISPUTES' IS UNDER REVIEW TO INCLUDE INFORMATION ON 'FAMILY DISPUTE RESOLUTION'. 
CURRENT INFORMATION ON THIS PAGE SHOULD BE READ IN CONJUNCTION WITH INFORMATION FOUND AT www.familyrelationships.gov WHICH DETAILS THE NEW REQUIREMENTS UNDER THE FAMILY LAW ACT FOR FAMILY DISPUTE RESOLUTION (FDR)

From 1 July 2008 changes to the family law system make Family Dispute Resolution a requirement before you can apply to the court for a parenting order.                 

This includes new applications, and applications seeking changes to an existing Parenting Order. There are some exceptions to this requirement, such as cases involving family violence or child abuse or where the matter is urgent.

CONFLICT RESOLUTION SERVICE IS A DESIGNATED PROVIDER OF FAMILY DISPUTE RESOLTUION SERVICES.

 

What is a family dispute?

All families at some time experience difficulties and stress. Family disputes include any conflict between people who are related in some way, or who are part of a family or have been part of a family in the past. This can include:

  • within families, such as between couples, parents and children, siblings
  • between families, such as adult siblings and their families, grandparents and their children’s families, blended or step-families
  • between separated couples and their families

Family disputes can be about almost anything. Some of the most common topics people discuss in mediation are:

  • Child/teenager's behaviour
  • Children’s education, health and welfare
  • Contact with children (separated couples or extended families)
  • Financial support for children (separated couples)
  • Inability to communicate
  • Lack of trust
  • Lifestyle/environmental differences
  • Money/debt
  • Parenting differences
  • Previous agreements broken down
  • Property settlement (separated couples or older parents & adult children)
  • Relationship breakdown
  • Verbal abuse/swearing or bullying

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What assistance is available?

Family disputes can be difficult and emotional. When relationships change it can be hard for family members to handle things on their own. There are a number of services available to assist.

Counselling can assist people to change things in their relationships or themselves and assist people to cope with difficulties and stress

Mediation can assist people to work through differences and reach an agreement, for instance about parenting responsibilities, finances or communication

Group Work can assist people to develop skills, such as anger management, communication and parenting

Support Services can offer practical assistance, for instance contact and changeover centres, or intervention and support for people at risk or in need such as home visits or advocacy

These services are sometimes referred to as Primary Dispute Resolution or PDR services. PDR processes are confidential, non-adversarial, non-threatening, flexible, empowering and affordable.

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When is mediation suitable?

In comparison to court the confidential agreements reached through mediation are:

  • More flexible to meet their families needs
  • Less costly
  • A more satisfying resolution process

Mediation allows families to be in control of the process and to make arrangements that suit the needs of their family.

Mediation is most suitable when:

  • All involved genuinely want to resolve the dispute;
  • People are safe to agree and disagree with each other.

There are times when mediation might not be appropriate. It is important to alert staff or mediators in the following circumstances:

  • Where there is ongoing domestic violence, or extreme fearfulness of the other person;
  • Where child abuse has occurred;
  • Where it may be difficult for people to negotiate due to alcohol or drug abuse or psychiatric illness;
  • When people are overwhelmed by feelings of sadness or anger, for instance soon after separation;
  • When there has been a history of broken agreements.

A discussion about these issues will ensure that mediation happens in appropriate circumstances.

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Deciding whether to stay together or to separate?

Whether you want to stay together or separate, PDR services can assist.

Relationship counselling is often believed to be about working out the problems between people who want to stay together. But it can also assist families talk about changes in their relationship, and assist people to cope better if a relationship is ending.

Mediation can assist families sort out differences and agree on how to share ongoing responsibilities, such as parenting or finances. Mediation can also assist families to talk through important issues and make decisions together.

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Disputes concerning children

Under the Family Law Reform Act:

  • each parent has parental responsibility for the child, which means all the duties, powers, responsibilities and authority which by law parents have in relation to children; and
  • the best interests of the child are the paramount consideration in any decision that affects him or her; and

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Separated Couples – Parenting Responsibilities

Mediation can assist you to work together to share your ongoing parenting responsibilities and the meet the needs of your children. Mediation focuses on the needs of the child or children. The goal is always to work together towards agreements that are in the best interests of the children and take account of their care, welfare & development.

Couples are strongly advised to seek legal advice before entering into an agreement concerning parenting responsibilities. CRS recommends that you prepare yourself for mediation by thinking about what is best for your child in relation to parenting responsibilities.

This list is just a suggestion. You may not want to talk about some of the issues yet or at all. They are a guide to assist you in planning for the welfare of your child.

Living arrangements
- residence (where the children will spend the majority of time)
- contact with the other parent or other people of importance in the life of the child (including face to face, phone, letters)

Days and arrangements applicable to
- Weekday, weekend arrangements (including time and manner of collection and return)
- Special days, such as Mothers Day, Fathers Day, birthdays
- School holidays, other holidays
- Leaving the state

Housing – details of proposed accommodation to be provided by each person with whom the child will live – eg will the child have their own room?

Supervision – hours of work, who looks after the child in the parents absence?

Financial support – maintenance and child support. How will the child be supported financially, including details of maintenance orders or child support assessments, what is actually being paid or proposed to be paid by parent not living with the child?

Health – sharing of information concerning the health of the child, commitments regarding ongoing medication needs and costs; or disabilities and the care and treatment the child receives or it is proposed the child receives, discipline, emergencies.

Education – school the child attends, communication around school reports and school functions, costs of schooling.

Specific Issues – day to day care, welfare and development of the child, religion, participation in extra curricula activities

Communication between parents – how are parents going to communicate with each other about the children? Is there going to be any agreement re communication about the other parent to the child? (eg no denigrating)

Resolving conflict and updating agreements to match developmental age of the child – how are conflicts which arise going to be resolved? How will agreements be modified to suit the developmental needs of the child?

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Separated Couples – Property Disputes

Mediation can assist you to work together to decide how to divide or share assets and resources. CRS recommends that you prepare yourself for mediation by gathering the facts and figures about these items before you come to mediation. Some issues require detailed information or advice, which will need to be brought to the mediation session, such as valuations, bank statements or bills.

Couples are strongly advised to seek legal advice before entering into an agreement altering property interests. This is so that you know your rights and responsibilities under the law and have all the information you need to make a fair decision.

Assets
- Real Estate – address, current market appraisal, initial purchase price, total market value (includes financial and non financial improvements such as renovations, painting, landscaping etc.); if jointly owned, the value of your interest in that asset;
- Shares and debentures – company, number held, total market value;
- Insurance policies – company, term, policy number, total surrender value;
- Motor vehicles – make, model and total market value;
- Funds - in savings accounts and cheque accounts in banks, building societies and credit unions – name of institution, account number, total;
- Cash – total;
- Furniture, furnishings and effects – total value;
- Interest in any business – name of business, total market value and manner in which business will be valued;
- Other property and assets

Resources
- Gross weekly income
- Government benefits or allowances
- Superannuation – name of fund, years of membership, total contributions, when benefits payable;
- Other – interest in any deceased estate or trust

Liabilities
- Mortgage balance: who is going to take of repayments, will bank lend to one person only;
- Overdraft
- Credit cards
- Loans
- Hire purchase, lines of credit
- Bills – telephone, electricity, gas

Contributions to the welfare of the family

Future needs

 

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Why do I need Legal Advice?

Mediation is a way of resolving disputes following separation without going to Court. While parenting and property arrangements are sometimes made through Court, it can be an emotionally and financially draining process.

Mediation offers an alternative way for you to organise your children’s care and living arrangements. It provides an opportunity to learn new ways of communicating and to work out your own agreements for children, financial and property matters.

Mediation can be more successful when people are aware of their legal rights and responsibilities. It is always advisable to seek independent legal advice in order to make informed decisions and negotiate a fair agreement.

It is important to remember that mediators facilitate discussion between the parties in relation to the dispute. They do not advise you what to do and they will not give legal advice.

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Rights and Responsibilities

Mediation is currently not compulsory in order to commence proceedings in the Family Court, however under new changes to be implemented in 2007 it will be compulsory to attend mediation prior to going to court.

Currently Mediation can be used in conjunction with the court process, before and/or after making an application to the Court.

A party has the right to obtain legal advice at any stage in the mediation process.

A party has the right to terminate the mediation at any time.

Evidence of anything said, or an admission made, at mediation is not admissible in any court or in any proceedings before a person authorised to hear evidence.

In providing family and child mediation services, a mediator must not disclose any communication or admission made to him or her in the mediator’s capacity as a family and child mediator unless the mediator reasonably considers that it is necessary for him or her to do so:

a) to protect a child; or
b) to prevent or lessen a serious and imminent threat to:

i) the life or health of a person; or
ii) the property of a person; or
c) to report the commission, or prevent the likely commission, of an offence involving:
i) violence or a threat of violence to a person; or
ii) intentional damage to property of a person or a threat of damage to property; or
d) to enable the mediator to discharge properly his or her functions as a family and child mediator; or
e) if a child is separately represented by a person under an order under section 68L of the Act – to assist the person to represent the child properly.

Qualifications

The mediators are qualified under Regulation 60 of the Family Law Reform Act to be family and child mediators through:

  • intensive training in mediation
  • additional training and supervision in family and child mediation
  • extensive experience in family and child mediation and/or relevant tertiary qualification

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Some useful definitions

Child: Children up until the age of 18 years and may also include children over that age, e.g. children who are for some reason needing to continue dependence on their parents such as students or children that are intellectually or physically handicapped.
Parental responsibility: All the duties, powers, responsibilities, and authority that by law, parents have in relation to children. The law focuses on parents’ responsibilities and children’s rights. Includes long term, short-term care, welfare and development. Replaces the concepts of guardianship and custody.
Residence: where and with whom the child/ren will live with.
Contact: (formerly access) agreements regarding the time a child spends with or communicates with - the parent with whom the children are not residing; and other people, such as grandparents and other relatives.
Child support: can be determined administratively by the Child Support Agency but does not apply to all parents/guardians. This is non negotiable for people on a pension and negotiable for people on an income.
Separating couples: include married, defacto, gay and lesbian couples who have discontinued or are in the process of discontinuing their relationship as a couple.
Family violence: is conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of the person’s family to fear for, or be apprehensive about, his or her personal well being or safety.
Family Law Act (1975)
Family Law Reform Bill (1995):
covers property division for married couples and parenting responsibilities for both defacto and married couples.
Parenting Plan: is a flexible plan, which can deal with
- Residence of the child - contact between the child and any other person significant to the child
- Maintenance of the child
- Any other aspect of parental responsibility that the parties may wish to include in the plan (school, after school activities etc).
Parenting Order: court orders made about children. Includes residence order (where child will live), contact order, specific issues order (e.g. schooling), and/or child maintenance order (where relevant).
Consent Orders: Agreements made between couples and formalized as an order of the Court. Only applicable for matters covered by the Family Law Act (does not include property or spouse maintenance for unmarried couples)

Where can I find out more information?

Parentlink
Free counselling and advice for parents.

Family Relationships Online
Provides all families (together or separated) with access to information about family relationship issues.

Women's Information and Referral Centre
Provides free and confidential information to all women on any issue.

Mensline
Supports men who are dealing with relationship difficulties.

Domestic Violence Crisis Service
Provides support and assistance to all involved in domestic violence.

Centacare Canberra
Provides a range of services including marriage, student and family counselling, family planning, youth housing, supported housing, disability support and employment and mental health programs.

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