A Brief Guide of Family Mediation Brisbane

Posted by FamilyLawyer on January 5th, 2021

The family mediation Brisbane is a conflict resolution system, where the parties are helped by an impartial third party called the family mediator. The idea is that the family mediator helps obtain a solution that arises from themselves, through sessions held outside the court, in an environment that favors understanding.

In the following article, we will see those cases in which family mediation is mandatory, which means that the family law requires the parties to submit to it before using. We will explain what these cases are and what are the steps to follow.

If you need help regarding family mediation Qld or a similar one, write to us here, and a lawyer from “Aylward Game Solicitors” will contact you shortly.

One of the premises from which we have to start is that the concept of family has undergone a series of changes in recent years, completely displacing the classic idea of family, currently understood by family as the union of two people, married or not, of the same or different sex and with children, familiar or not, the basis of the marriage being the love, affection, and affection that the parties freely profess, depending on the support of the family of the parties and not of the extended family.

We can even affirm that there are single-parent families, that is, with only one parent. However, and for the study that we are developing, we will not stop in its analysis.

What is crystal clear is that since there are full freedom and lack of compliance with social conventions for an adult person to join another adult person, forming a couple – family, there is also that freedom to break the relationship, a union formed. And it is for this same reason that we must be aware that although adults indeed join/disjoin freely. Their will must be respected. Minors who are also part of the family in which they are causes the breakup should not be forced to break up with any of their parents or caregivers, nor suffer the negative consequences of that breakup.

As we have seen, mediation arises from the confluence of several factors, such as the crisis of the traditional judicial system, due to the saturation it suffers and the dissatisfaction of citizens with the resolutions issued and the mandatory compliance with them;

The rise of alternative conflict resolution methods where the parties have a primary role and a massive degree of participation or the need to seek conflict resolution methods that promote social peace.

In this way, and the field of Family Law, we can define family mediation as “a process of construction and reconstruction of the family bond on the axes of autonomy and responsibility of the parties affected by a conflict, in which process intervenes an impartial, independent, qualified third party without any decision-making power, who is the family mediator, to facilitate, by conducting confidential interviews, the resumption of communication between the parties and self-management of the conflict within the private family environment, taking into consideration the peculiarity of the situations, their diversity and the evolution of family relationships.”

Although one of the fundamental characteristics of mediation is indeed the will of the parties to participate in the process, in the field of mediation family law Qld, this characteristic takes on more relevance, since the parties in conflict, a couple in the process of breaking up, not only must manage their future relationships, but also have to manage the future relationships of children with parents, and everything that entails.

This definition can make us think that mediation is counseling or family therapy; nothing is further from reality. The difference that lies in these processes what they seek is the solution to the problem that the couple has, helping the parties to communicate, the purpose being the non-rupture of the couple. At the same time, family mediation Brisbane does not question the rupture at all, but this is a fact; what you are looking for is the best redefinition of the new situation created.

A fundamental question in this area, which raises many and very diverse answers, is should the children be present and take an active part in a mediation process, or on the contrary, should they remain outside it, with the parents being the only valid interlocutors in the process only?
Part of the doctrine understands that minors should not be part of the family mediation process since it can revert negatively and parental / maternal-child relationships. They believe that parents, adults in breaking up, should be the ones who dialogue and make the necessary decisions.
Another part of the doctrine, however, fervently supports the idea that minors are an active part of the mediation process from the beginning since they will finally be involved by the decisions made there. Therefore, they must see that their interests and preferences are represented.
Minors are involved in the decisions adopted by their parents in the mediation process, just as they are in judicial decisions issued by the competent judge.

The intervention of the minor in the judicial procedure has a right to be heard under art. However, and generally, this intervention is since it is the parents themselves, immersed in the contentious divorce procedure, who request the minor’s exposure and its examination by the psychosocial team of the court to denigrate the child. the other party as a parent. However, this intervention causes the least difficult consequences to erase, affecting his personal development, in all the senses, and all the aspects of his life.

In this way, what the parents suppose the most beneficial for their interests within the procedure, turns out to be the most pernicious for their children, thus distorting the parents’ duty to ensure the best parts of the minors article of the Australian Civil Code.

However, in the family law mediation process, what is intended is not to discredit the other party as a person, but quite the opposite, and to avoid the legal battle, with detrimental effects for all parties involved, the intervention of the minor does it is advisable, but with certain limitations.

From my perspective, and after what has been studied, I understand that the minor, depending on their age, personal and evolutionary development, should be part of the family mediation Qld process, but not from the beginning since they have to be very present not only in the jurisdictional sphere since the parents have to fulfill their parental-filial duties every day, just as the minor has the right to be heard in his life daily in the family environment.

Along with this, we must always keep in mind the cause that gives rise, in this case, to a family mediation process, such as a family breakdown, where existing roles and established relationships must be redefined.

For these reasons, I understand that in the early stages of the family mediation process, where problems are aired, where the situation is much tenser, and where negative behaviors are on the surface, it is not at all recommended that minors be present and be an active part of the process.
Moreover, parents are the people who best know their children, their interests, needs, preferences, so we could say that the presence of minors is guaranteed.

However, once these phases have passed, the parties have reached an agreement in principle, even on the thorniest matters. Where the level of tension is much lower, the intervention of minors is recommended, depending on their age and development, to participate in the distribution of roles, such as in matters of communication schedules, visits and stays with the non-custodial parent, or distribution of time in the case of shared custody by the parents, since these types of decisions will affect minors directly, in their daily lives.

It would even be recommended that the extended family, that is grandparents, uncles, participate in the final phases, as long as their intervention is necessary for the subsequent development of the agreements adopted in the family mediation process.

Family mediation and couple crisis:

The new regulation is given to divorce, which eliminates the obligation to prove a cause for the achievement of the same or separation, thus respecting the fundamental right of people to their privacy and eliminating the concept of alienation – divorce sanction.

However, and in a family mediation Brisbane process, the reasons for the break must be considered, since these affect the couple’s communication, their vision of the conflict, that is, they are factors that are outside the scope of the legal so that in a trial they do not have to be exposed, and yet they are fundamental keys to understanding the conflict and the attitudes of the parties. Along with this, mediation implies that the parties are protagonists both in the conflict and in its resolution since they must be the ones who find the most appropriate and convenient solution.

Family mediation and exercise of parental apparently:

The term parental authority comes from the codification made by Justinian at the time of the Roman Empire. Although it is obsolete, it continues to be maintained in the Australian legal system.

Parental authority, defined in the article of civil code reflected above, has evolved to the current concept of “parental responsibility,” a cooperative concept, and of implications and duties towards children, putting the interests of minors before them in crisis cases—any other, own or others.

Mediation, Paternity, Maternity, and Family Relations:

Although filiation is indeed a matter of jus cogens, that is, of imperative law. Hence, there is no capacity for maneuver and autonomy of the parties’ will, and there are elements in the legal system in which the statements of the parties are relevant; the judicial authority even subsequently endorses them. An example of this is the acknowledgments of affiliation in the registry file.

A thorny and problematic situation is one in which an adoption exists, not only between the person who wishes to know his or her origins and the biological family, but also when relationships are established between the natural family and the adoptive family.

Family mediation and Family housing:

This is an important field of work since the attribution of the family home or the rights over it to one of the spouses is a pitched battle, contributing to the increase in the price of housing.

Family Law mediation and alimony:

The quantification of alimony is due to abstract legal formulas, under the Civil Code’s art, where the concepts included within the term “food” are collected. Along with this, art. The same legal text speaks of the proportionality between the amounts established as alimony and the economic possibilities of the parent who has to pay it.

The amount given as alimony is provisional since it is subject to modification if any of the circumstances taken into account when establishing the pension changes.

However, there is no one better than the parties to know their purchasing power, their income, and expenses, so that these are the ones that determine the amount allocated to pension, taking into account that the extraordinary costs of minors must be a joint decision of both parents, both to decide that the expense is necessary and convenient for the minor and to pay the money.

Mediation and financial aspects of divorce:

In this case, and due to the difficulties that this matter may entail, legally speaking, it is recommended that the mediator encourage the parties to be advised on the issue by competent professionals, such as Mediation lawyers or economists, even making them participate in the family mediation process, thus ensuring the balance of the parties.

Mediation and domestic violence:

The mediator, a person trained in different disciplines, such as psychology or law, must be attentive to detect if any of the partners have suffered violence from the other, or if in the future this violence happens. This is necessary so that all issues that influence future negotiation are resolved. In this way, this phase of the process can be reached in real equality between parties, with absolute respect for each other and the mediation process eliminating any risk of coercion or violence.

Thus, we say that the degree of violence in which family mediation in Australia is prohibited must be seen since the scale is vast. Secondly, it will have to leave the way free to use the mediation process when the specialists advise it, and it is carried out by them or in the phase of serving a sentence when the victim exercises their right to participate in it.

Along with this, we must say that legally the parties can end their relationship by consensus, presenting the regulatory agreement for judicial approval and approval. This can happen because both parties enjoy legal advice, either freely contracting or for the benefit of free justice. This approval must be preceded by a favorable report from the Public Prosecutor. In this regard, the ratification is personal, before a judicial official and both parties separately, which are also guaranteed.

Mediation and intergenerational crisis:

As stated at the beginning of this chapter, the concept of family is changing, reducing to a great extent, and whose characteristics are individualism and the satisfaction of the needs of the person and the couple, leaving behind the scope of the extended family, that comes to be formed by people of different generations, with what this implies. This is why mediation has an enormous field of cultivation here, since the extrapolation of these conflicts to the judicial sphere is counterproductive in every way and for all those involved, even for society itself, for example, in the cases of family businesses and the generational change that occurs in them, even disappearing.

In this way, and given the flexible and open nature of the process and where all the people affected by the conflict can and should participate, mediation to the litigation is recommended.

Mediation and disability:

This field of action of mediation deserves special attention since they are cases in which there is a person with some degree of physical or mental disability, and where in most cases what concerns the family, and for what is litigated, is the one who manages the assets of the disabled, who and what amount has to pay for the care of the disabled, mainly forgetting the person, and giving infinite importance to the economic issue.

Frequently Asked Questions

What is family mediation?

The family mediation in Brisbane is essentially a voluntary procedure. However, concerning some matters, the law requires submitting to it before the lawsuit. The agreement reached by the parties must undergo a final approval step by the family court.

When is family mediation mandatory?

Only in 3 cases is it mandatory:

  • Food pensions.
  • Personal care of children (Guardianship).
  • Direct and regular relationship with children (Visitation).

How did you get to family mediation?

The court is the one who refers the parties to a family mediator. The idea is that the mediator facilitates reaching an agreement that ends the conflict without going to trial.

What is the cost of mandatory mediation in family law?

Mediation is free, and it can be charged for the service when the parties have the resources to finance it. For this, the income level, the ability to pay, and the number of people in the family group will be considered.

When is mandatory mediation held?

Before filing legal action and when appearing in court to file the legal action. As it is a compulsory mediation matter, the parties will be referred to mediation.

How long does the mediation process take?

It can last a maximum of 60 days from the first mediation session and can be extended for up to 60 more days, provided that the parties agree.

How is the family mediator chosen?

If the parties disagree with the mediator to be chosen, this will be appointed by the family judge from the list of mediators hired by the Family Court mediation for these purposes. In any case, the parties may always choose, at their own expense, a mediator from the Registry of Mediators maintained by the Family Court mediation.

What happens if we agree to family mediation in Brisbane?

The agreements reached before a family mediator, if approved by the judge, have the same legal value as a sentence, avoiding all the time and cost of a trial. If the mediation ends in agreement, the mediator prepares a record that must be read and signed by the participants. The family mediator must deliver a copy to each party and submit it to the court for approval.

What happens if we disagree on family mediation?

If there is no agreement, the mediator must prepare a termination certificate stating why an agreement was not reached, which must, as far as possible, be signed by the participants. The family mediator must deliver a copy of it and send it to the court.

If you need help regarding this issue or a similar one, Contact us, and a lawyer from “Aylward Game Solitaire” will contact you very shortly.

Article Source: https://familylaw.aylwardgame.com.au/a-brief-guide-of-family-mediation-brisbane/

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