When you attend mediation, the mediator is the person who runs the show, so to speak. The mediator works with both sides in helping the parties come to an agreement. But just because the mediator is driving the settlement negotiations, your lawyer still has an important role.

Prepare

First, your lawyer will need to prepare for mediation. This entails meeting with you to discuss the process, preparing a file with all important and necessary documents to bring to the mediation, and exchanging documents with the opposing party. Even though the lawyer is not the one who will lead the negotiations, the lawyer still must come to the mediation prepared to advocate on your behalf.

Advocate

Your lawyer will need to be your advocate at mediation. Your lawyer will help you explain your case to the mediator, and will make sure that your wishes are being clearly expressed to the mediator. If you forget to tell the mediator a pertinent fact or detail, your lawyer will be sure to make sure that said detail is mentioned.

Advise

Your lawyer will be your advisor at mediation. While a mediator can tell you how the law works, and can suggest a certain path, you will still want your lawyer present to advise you on whether a proposed agreement is in your best interest. If it seems like the parties are too far apart with regard to reaching an agreement, your lawyer may advise that the mediation cease.

So while the parties and the mediator are front and center, so to speak, at mediation, your lawyer also has a significant role as well.

Vlog Transcript

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists, and today we’ll be discussing mediation.

Many couples facing the end of their marriage feel confused about how to resolve the many issues that come up. Well-meaning friends and relatives might recommend running to an aggressive lawyer who can help you battle out in court, but I want to use this video to tell you about different ways of solving your problems that can help everyone to feel that they were treated fairly and with respect.

You and your spouse have the ability to choose how you will go about reaching an agreement. Despite what you may have heard from sensational articles in the media or even through friends, most family disagreements in Australia end with a settlement. This means that most couples do not go to court to work out child custody issues, property division, or maintenance. They sit down together, sometimes with the help of professionals, and work through the problem.

Mediation is an alternative approach to resolving disagreements between couples. In Australia, it’s frequently used for figuring out property issues, and it’s also used for parenting disputes. Rather than going to court and have a judge determine how best to solve your problems, mediation allows you to control the process and the outcome.

So how does mediation work? A third neutral and objective person serves as a mediator whose role is to facilitate communication between you and your spouse to help you reach an agreement that you’re both comfortable with. The mediator helps you figure out what your interests are, what your actual needs are, and what is fair to everyone.

There are many benefits to mediation. One is that you’re involved in the process and the final decision. If you don’t like the way the process is going, you can say so and even leave the mediation. You’re in control. No judge makes a final ruling for you that you might not like. You have the right to accept or reject any agreement. Another benefit of mediation is that it gives you a lot of flexibility.

Together with the mediator and your partner, you set up times for meetings. This means you don’t have to miss work or find babysitters, or be controlled by court dates. The settings for mediation is also much more comfortable: usually in the mediator’s office and definitely not in a courtroom. Mediation is usually much shorter than going to court, limiting the time to weeks or just a few months.

When it comes to parenting issues, family dispute resolution, or FDR, is a very good option. This is a type of mediation that’s required by the courts when parents can’t come to an agreement on their own. These mediators are trained in the area of family disputes, and they usually have a background in law, social work, or psychology. They help couples figure out what’s best for their children. If you and your partner can work out a parenting plan on your own, that’s great. If you can’t, and you need to go to court to get a judge to decide, you first have to attend FDR and show the court you’ve both a good effort to resolve your problems.

I often recommend to clients to get legal advice when you’re in mediation, and I would recommend that you do have a lawyer. The lawyer’s role is to make sure you know your legal rights and obligations, and to help you understand the legal consequences of the decisions that you make in the mediation.

Sometimes lawyers actually attend the mediation sessions if both sides agree. It’s helpful to have a lawyer in mediation because sometimes there is a power imbalance between you and your spouse where one is stronger, or louder, or takes advantage of the other. Having a lawyer there can help balance the sides. But even if you don’t have a lawyer with you, you have the right to call your lawyer, or anyone else, to ask questions. Mediation agreements reached without each of you understanding your legal rights can result in failed negotiations or even broken agreements.

If you have more questions about mediation or family dispute resolution, or want to learn more about them, you can take a look at our other videos and at our website, or feel free to call me. I’m Vanessa Mathews at Mathews Family Law & Mediation Specialists.

Welcome to Mathews Family Law & Mediation Specialists. We’re here to assist you with your family law matter. I’m Vanessa Mathews, and I’m an accredited Family Law Specialist and Mediator.

I established Mathews Family Law & Mediation Specialists in 2007, with a commitment to providing our clients with a high level of family law advice and personal service. At Mathews Family Law & Mediation Specialists, we cover all of the issues that commonly arise when our clients separate and divorce. We’re experts in negotiating parenting arrangements and the division of assets.

If you’re starting a new relationship whether married or de facto, we can assist you with a prenuptial agreement. We also advise on the full range of family law matters, whether it be relocation, maintenance or superannuation splitting.

For most of our clients, we’re able to achieve a resolution through negotiation and mediation. For some of our clients, it only is a last resort, litigation may be necessary.

Separation and divorce is always difficult. At Mathews Family Law & Mediation Specialists, we can assist you to navigate your way through this time. If you have any questions about your family law matter, please don’t hesitate to contact us.

Our website contains lots of information about family law in Australia. We’ve also prepared a family law eBook with you, our client, in mind. Simply click on the eBook icon to download.

Choosing a family lawyer is a very important decision. I’m confident that Mathews Family Law & Mediation Specialists is the right choice for you.

Often family violence and the breakdown of a relationship go hand in hand. This connection manifests in one of two ways; either the violence was the reason for the relationship breakdown, or the violence starts happening as a result of the relationship breakdown. While violence is always devastating for the victim, bear in mind that it can also have an impact on your children.

Children can be exposed to violence several ways. They can witness violence happening between their parents, they can actually be the victims of violence, and they can hear the violence occurring. Sometimes children are involved indirectly, for instance in situations where the violence occurs while the child is being held by the victim.

Psychologists have found that children who are exposed to family violence frequently display the same symptoms as children who have been abused or neglected. Essentially, the negative consequences of exposing children to any degree of family violence are undeniable. This behaviour can hinder a child’s emotional development, and there are also cognitive and social ramifications as well. Studies have further shown that the longer the violence lasts, and the more sever the conflict, the more critical the impact will be on the child.

Some signs that a child could be suffering from the negative effects of family violence have been identified as follows:

• Fear and terror from witnessing or being directly involved in the abuse
• Problems with relationships (including parents and siblings) which can carry on to adulthood
• Lack of motivation at school
• Social withdrawal
• Aggression towards peers
• Low self-esteem
• Alcohol and drug abuse problems
• Suicide attempts

Another major way in which family violence impacts the child is the extent to which the mothers’ caregiving abilities have been limited as the result of being the victim of violence. Often domestic violence can reverberate around a family, causing the otherwise non-abusive parent to abuse the children, or causing children to abuse each other. Abuse is cyclical, the effects of which can truly be devastating.

So what can you do if you fear your child is being affected by violence at home? Often victims are so emotionally and physically fatigued that they are unable to help themselves, let alone give their children the attention they need. However, it is important to recognise that while your child may not be the direct victim of violence, they can still be harmed by it, and there are steps you can take to mitigate the harm suffered by the child.

1. Remove the child (and yourself) from the violent situation. This is often easier said than done, but the sooner you can remove yourself and your child from the violence, the less severe the long-term impact will be.
2. Seek help. If you are the victim of domestic violence, you and your child will need to seek help in the form of protection, as well as therapy. Even if you think you have shielded your child from the family violence, chances are they have been affected in some way.
3. Get back to a normal routine. The sooner your child has settled back into a normal routine, the quicker the recovery process can begin. Make sure the child continues to attend school, participate in extra-curricular activities, and have outings with friends.
4. Surround the child with family and friends. Family violence often results in children feeling isolated and lonely, and withdrawing from social interactions. If you put your child in an environment where he or she is frequently around loved ones, this since of loneliness can be mitigated and the child may be less inclined to withdraw socially.

The court imposes mandatory dispute resolution prior to applying to the court for child related matters in hopes that couples are able to resolve their issues and reach an agreement on their own terms.

Some couples will fall short of this goal and will have to resort to litigation to reach an agreement. However, some couples will succeed and, viola! The dispute resolution will have been effective and agreement, which once seemed impossible, has occurred.

So what happens once you reach an agreement?

The details of the agreement can be recorded in a parenting plan, which can be renegotiated over time. The agreement must be written, dated, and both parties must sign it in order for it to be valid. If you intend to make this plan permanent and final, you can subsequently apply to the court to have the agreement made into a consent order, in which case it becomes legally binding.

Bear in mind that changes made in your parenting plan may in turn have an affect on child support, income support, and family assistance payments. Also, if your parenting plan dictates an amount for child support, the Child Support Agency has the authority to enforce the agreement.

If you think there is a chance of reconciliation, you may be eager to attempt family counselling to work out your problems with your former spouse. But what if the damage is already done, and you are not interested in reconciliation? Should you still consider some type of family counselling?

Often, couples with no intention of getting back together, still find family counselling to be beneficial. Counselling may help you cope with the changes brought on by a separation or divorce, and can also be help you to understand and address any issues your children may be experiencing because of the breakup. Counselling helps you explore hurt feelings, unresolved issues in your relationship, new living situations, and financial adjustments. So, even if you have no intention of reconciliation, counselling still may be helpful as you experience a breakup.

Alternatively, you may in fact be hoping for reconciliation. Or, you may have an otherwise steady relationship, but you and your partner have been fighting more than normal. If find yourself concerned because of recent and atypical fighting that is occurring in your relationship, or other problems have arisen, counselling may be just what you and your partner need to get through a rough patch in your relationship. Counselling can help you get to the root of the problems in your relationship, and help you cope with new challenges as your life together evolves.

If you don’t think that counselling is necessary for you, it still may be something your child could really benefit from. Even if your child seems resilient and undaunted by your divorce or separation, she could be experiencing emotional issues that can manifest later. Addressing these feelings timely can save your child much emotional heartache and result in healthier relationships between your child and yourself as well as your former partner.

If you are interested in counselling, you may find a private practitioner who is qualified to serve as a counsellor for you, or you may take advantage of government sanctioned community based organizations as well. Don’t let money be an excuse to not take advantage of counselling; there are government resources available that make adjustments to the costs of counselling if you are on a low income or experiencing financial struggles.

If you have further questions about family counselling, you can always contact the Family Relationship Advice Line on 1800 050 321, visit www.familyrelationships.gov.au, or seek advice from one of the knowledgeable lawyers at Matthews Family Law.

Child Support can be sought via the Child Support Agency or a Child Support Agreement. Legal and adoptive parents will be recognised as having parental responsibilities towards the child.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the legal parents of children of marriages also apply to the legal parents of children of same sex couple relationships. A partial resolution to this issue is for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.

While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough.  Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table.  But it’s almost always best to avoid court, at least in the beginning.  We recommend trying a number of alternatives, before going to Family Court:

Work it out on your own

Sit down and talk to each other.  This can save both of you time and money.   And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.

Family Dispute Resolution 

Many couples start with family dispute resolution.   Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process.   This is generally used when children are involved.

Mediation 

Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions.  The mediator is interested in resolving the problem in the best way possible for everyone involved.  The mediator does not judge or make a final decision but will help you come to your own resolution.

Collaborative Divorce 

Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved.  Together all sides work together to help both of you come up with a solution that works for everyone.  Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.

When is it time to throw in the towel and go to Family Court?

Sometimes though, Family Court may really be the right way to go.  Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.

Imbalance of Power

If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves.  While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.

Your Partner has an Aggressive Lawyer

Even the most well-meaning of people can fall under the spell of a tough lawyer.   If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.

Your Partner does not Communicate

Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side.  You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want  or won’t agree to anything,  If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.

Vanessa Mathews is an accredited specialist in family law, and has the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Mathews Family Law & Mediation Specialists, Accredited Family Law Specialist, Suite 10, 1 Grattan Street, Prahran Vic 3181, phone

1300 635 529, [email protected]

Mathews Family Law: mathewsfamilylaw.com.au

Family Court of Australia: www.familycourt.gov.au

Federal Circuit Court of Australia: federalcircuitcourt.gov.au

 When there is a dispute over custody sometimes it is appropriate to have an independent children’s lawyer appointed. An independent child’s lawyer takes a proactive role and acts as an “honest broker” during custody proceedings as the child’s legal representative.

This person does not take instruction from the child, but rather they are to form an opinion after viewing the evidence and act in the best interest of the child. They are impartial, and are to ensure the child’s views are expressed in the proceedings, and make sure that all relevant matters are drawn to the court’s attention.

An independent children’s lawyer will not automatically disclose conversations with the child to the court. Rather, he or she will only disclose this communication if it is in the best interest of the child. However, if the lawyer determines that is in fact in the best interest of the child to share contents of the conversation with the court, it may do so even without the child’s permission.

When deciding whether the appointment of an independent children’s lawyer is proper, the court will consider a list of factors, that hail from a 1994 case.  Some of these factors include:

• allegations of child abuse
• intractable conflict between the parties
• issues of cultural or religious difference
• where the sexual preferences of one or both parents impinge on the child’s welfare
• issues of significant medical, psychiatric or psychological illness or personality disorder relating to the child or the parties
• where it is not appropriate for the child to live with either parent
• the proposed separation of siblings
• where one party wishes to relocate the child which would exclude the child from spending time with the other parent

An independent children’s lawyer is not necessary in most custody proceedings. Typically, they are only appropriate where the custody dispute is highly contentious, there are allegations of violence, or other extreme circumstances exist. If you think your case is one in which your child would benefit from representation by an independent children’s lawyer, you simply need to make an application to the court. Occasionally, the court will take action on it’s own initiative if it determines that doing so is in the best interest of the child.

It is possible to challenge a decision made by the CSA. There may be a right to internal review, an appeal to the Social Security Appeals Tribunal or to a court. Seek legal advice if you are considering challenging the CSA.

As you and your spouse separate and divorce, child support will be one of the issues you will need to address. The primary purpose of child support is to guarantee that children’s day-to-day needs will be met through regular periodic support payments. Additionally, child support allows children to enjoy the same or similar standard of living as their parents. Child support lawyers can be arranged by agreement between the parents, or through an administrative assessment conducted by the Child Support Agency (CSA).

Child Support Agreements

Often the best way to arrange for child support is through an agreement between the parents in the form of a child support agreement. This method allows parties to deviate from the formula used in the administrative assessment used by the CSA to determine support. There are two types of agreements that may address child support: a binding child support agreement and a limited child support applications agreement.
Child support agreements are considered binding if both parties to the agreement were given independent legal advice (from separate counsel), and the agreement must state that this is in fact the case. Additionally, the counselor who administered the legal advice must also execute and sign a certificate, which is included in the agreement. A binding child support agreement can be for any amount – including an amount less than prescribed under the CSA formula.
Unlike a binding child support agreement, a limited child support agreement does not require that the parties obtain independent legal counsel. The only requirements for this type of arrangement are that the agreement is in writing, signed by both parties and that the amount agreed to is at least equal to the amount payable under the child support agency formula.
It is not possible to modify or alter a child support agreement; rather you must terminate the agreement and enter into a new one. The Child Support Assessment Act provides for several ways to terminate a child support agreement:

• by entering into a fresh agreement
• by agreement in writing
• a court order
• a new national assessment, and
• simply if the agreement is three or more years old.

Child Support Agency and Administrative Assessments

Should you and your former spouse be unable to reach an agreement and execute either a binding or limited child support agreement, you may arrange for child support through the CSA. In order to obtain this, you must first make a child support application for an administrative assessment. The assessment will be made using the appropriate formula and can be subject to private enforcement or registered for collection through the CSA.
Administrative assessments are calculated by using a formula that requires parents to share in the support of their children and is based upon the level of care provided as well as their respective incomes. The various applicable formulas take into consideration a child support income amount, adjusted taxable income, self-support amount, and relevant dependent child allowance, among other figures. There are six formulas available, although the most common is “formula 1.”

The steps to determine formula 1 are as follows:

• Calculate each parent’s daily child support income for the child
• Calculate the parents’ daily combined child support income for the child
• Calculate each parent’s daily income percentage for the child
• Calculate each parent’s daily percentage of care for the child
• Calculate each parent’s daily cost percentage for the child
• Calculate each parent’s daily child support percentage for the child
• Calculate the daily cost of the child
• If a parent has a positive child support percentage under step 6, the annual rate of daily child support payable by the parent for the child is calculated by using this formula:

Parent’s daily child support percentage for the day

X (multiplied by)
Costs of the child for the day
Formulas 2, 3, 4, 5, and 6 are less common. They are variations provided to consider non-parent careers, non-resident parents, multiple cases, and special circumstances or deceased parents.
Should any of the elements used in the formula change, the CSA should be notified so that the child support amount may be recalculated.
It is possible to be awarded an amount that is inconsistent with the administrative assessment of child support. If you are seeking a departure from the assessment you simply need to fill out a form and submit it to the CSA who will then schedule a conference to hear the parties. A written decision is ultimately provided to both parties. In determining whether a departure is proper, grounds for such must be established, it must be just and equitable, and it must be deemed otherwise proper, and there must be a special circumstance. The Child Support (Assessment) Act 1989 has enumerated ten types of special circumstances:

• Costs of caring for a child. It costs you more than 5% of your child support income amount to spend time with the children.
• Special needs of a child. It costs you extra to cover the children’s special needs.
• Manner expected by the parents. It costs you extra to care for, educate or train the children in the way that you and the other parent intended.
• Income and earning capacity of the child. The child support assessment does not take into account the income, earning capacity, property or financial resources of the children.
• Money, goods, or property from the payer for the benefit of the children. The children, the payee or someone else has received or will receive money, goods, or property from the payer for the benefit o the children.
• High costs of child care. You are the payee, you have sole care of the children, and it costs you more than 5% of your child support income amount for the child care for children younger than 12 years of age at the start of the child support period.
• Necessary expenses in self-support. You have necessary expenses in supporting yourself that affect your ability to support the children.
• Income, earning capacity, property or financial resources of one or both parents. The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both parents.
• Legal duty to maintain another person or other children. You have a legal duty to maintain another person or other children not included in the child support assessment, and it costs you: more than 5% of your child support income to have contact with that person or those children, extra to cover the special needs of that person or those children, extra to cover the necessary expenses of that person or those children.
•  Additional income. You have earned additional income for the benefit of resident children.

A child support assessment ends upon child support terminating event. Such an event can occur when the child turns 18, when the child is adopted, or when the child, career or liable parent dies among other events.

Alternative Payment Methods

While it is most common to receive child support in periodic payments, it is also permissible to receive it in a lump sum payment. The most common situations where lump sum orders are considered are where there are difficulties in the enforcement or where the liable parent is asset rich and income poor, although there are many other situations in which a lump sum could be awarded.
Another payment method that has been gaining in popularity is a combination of the periodic payment and lump sum concepts. This results when the liable parent deposits the sum to be held in trust and distributed as child support liabilities accrue.
Finally, a party does have a right to make objections regarding decisions made by the CSA. The objecting party must lodge the objection 28 days from the service of the decision, and a decision regarding the objection will be made within 60 days. Additionally, there is a formal process available to allow parties to appeal an objection decision.