Counsellors give advice and assistance to couples who are considering separation or who are finding it difficult to cope with separation. Counselling may help resolve a problem without going to court.
Mediation is another way separating couples can resolve disputes without going to court or continuing with court. Mediation is a voluntary process and works best when both sides are on an equal footing - it may not be suitable where there has been family violence or where both people do not feel totally safe. Sometimes, but not always, lawyers can be involved in mediation and this can help to keep both sides on an equal footing.
The role of a mediator is to help the parties discuss issues, consider options and work out agreements that suit them both. Mediators do not give advice so it is important to get legal advice before going to mediation.
A mediated agreement may be registered with the court to make it legally binding. This is done using the Family Court Consent Order Kit. It is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.
Judicial Mediation in the Federal Circuit Court
From 1 January 2019, judges of the Federal Circuit Court may take applications from the parties for judicial mediation. It is expected that parties will first exhaust all mediation alternatives before applying for judicial mediation. Judicial mediation may be suitable for property disputes and/or parenting disputes where there is no allegation of serious risk or family violence. A different judge would be appointed to conduct the mediation. If the dispute does not resolve at judicial mediation, the case will go back to the original judge for further directions and, if required, trial [see Federal Circuit Court of Australia, Practice Direction 1 of 2019 Judicial mediations in family law matters].