MEDIATION
BOOKLET
A practical guide to
assist women to
prepare for mediation,
understand their rights
and answer commonly
asked questions about
the mediation process
with particular
reference to family and
domestic violence
situations
Contents
INTRODUCTION..................................................................................5
PREPARATION OF THIS BOOKLET ..........................................................5
ACKNOWLEDGMENTS ...........................................................................5
DISCLAIMER ...........................................................................................5
COPYRIGHT NOTICE ...............................................................................6
WHO IS THIS INFORMATION FOR? ........................................................7
SOCIAL MEDIA CAUTION .......................................................................8
DONATION FORM ..................................................................................9
PART 1 – MEDIATION and FAMILY DISPUTE RESOLUTION .................. 10
WHAT IS MEDIATION? .........................................................................10
WHAT IS FAMILY DISPUTE RESOLUTION? ...........................................10
WHAT DOES A MEDIATOR DO? ...........................................................10
WHERE DO I FIND A MEDIATOR? ........................................................11
IS MEDIATION FREE? ...........................................................................11
THE CURRENT LAW ABOUT MEDIATION .............................................12
DO I HAVE TO GO TO MEDIATION? .....................................................13
YOU CAN APPLY TO THE FAMILY COURT FOR AN EXEMPTION FROM
ATTENDING MEDIATION IF: .................................................................13
MUST I PROVIDE MY HOME ADDRESS ON COURT FORMS? ...............14
WHAT IS A FAMILY MEDIATION CERTIFICATE? ...................................14
WHAT WILL THE CERTIFICATE SAY?.....................................................15
PART 2 – DOMESTIC VIOLENCE AND MEDIATION .............................. 16
WHAT IS DOMESTIC VIOLENCE? ..........................................................16
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
2
CAN I STILL ATTEND MEDIATION IF I AM OR HAVE BEEN AFFECTED BY
FAMILY AND DOMESTIC VIOLENCE? ................................................... 20
DO MEDIATORS SCREEN FOR SAFETY? ............................................... 20
PART 3 – ALTERNATIVES .................................................................. 23
WHAT CAN I DO IF THE IDEA OF MEDIATION IS DISTRESSING FOR ME?
............................................................................................................ 23
WHAT SHOULD I DO IF I BELIEVE MEDIATION IS UNSAFE FOR ME? .. 24
MEDIATION AND SHARED PARENTING............................................... 25
WHAT TIME IS REASONABLE? ............................................................. 25
WHY IS THIS IMPORTANT?.................................................................. 26
HOW DO I KNOW IF MY PROPOSALS ARE REASONABLE AND
PRACTICAL? ......................................................................................... 27
PART 4 – ATTENDING MEDIATION .................................................... 29
THE MEDIATION PROCESS .................................................................. 29
WHAT SHOULD I KNOW ABOUT ATTENDING MEDIATION? ............... 29
IS MEDIATION A CONFIDENTIAL AND PRIVATE PROCESS? ................. 30
WHAT ARE THE EXCEPTIONS TO CONFIDENTIALITY? ......................... 31
WHAT HAPPENS NEXT?....................................................................... 32
HOW DO I BEST PRESENT MYSELF DURING MEDIATION? .................. 33
WHAT HAPPENS AT THE FIRST MEDIATION SESSION? ....................... 34
WHAT ARE THE IMPORTANT POINTS TO REMEMBER WHEN
ATTENDING JOINT SESSIONS? ............................................................ 37
CAN I HAVE A LAWYER REPRESENT ME AT MEDIATION? ................... 37
CAN MY NEW PARTNER OR OTHER FAMILY MEMBERS BE PART OF
THE MEDIATION SESSION WITH ME? ................................................. 38
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
3
CAN CHILDREN BE INCLUDED IN MEDIATION? ...................................38
WHAT DO I DO IF MEDIATION HASN’T WORKED OR IS NOT SUITABLE
FOR ME? ..............................................................................................38
HOW IMPORTANT IS THE INFORMATION ON THE CERTIFICATE TO THE
COURT?................................................................................................39
WE HAVE REACHED AGREEMENT IN MEDIATION, WHAT NOW? .......39
WHAT IF I HAVE ALREADY HAVE A FAMILY COURT ORDER? ...............40
HOW DO I MAKE THE AGREEMENT LEGALLY BINDING OR
ENFORCABLE? ......................................................................................41
WHAT IS THE DIFFERENCE BETWEEN CONSENT ORDERS AND A
PARENTING PLAN? ..............................................................................41
PART 5–LEGAL ADVICE AND OTHER RESOURCES................................ 42
LEGAL ADVICE ......................................................................................42
CHILDREN’S ISSUES / PROPERTY SETTLEMENT .... Error! Bookmark not
defined.
FAMILY AND DOMESTIC VIOLENCE HELP ............................................44
COUNSELLING ......................................................................................46
TENANCY SUPPORT .............................................................................46
OTHER RESOURCES................................. Error! Bookmark not defined.
.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
4
INTRODUCTION
PREPARATION OF THIS BOOKLET
This booklet was prepared by the Women’s Law Centre of WA Inc.
This is the fifth edition of the Mediation booklet - published 11 October
2013. © Women’s Law Centre WA (Inc)
ACKNOWLEDGMENTS
Many thanks to volunteer Lynette Hill for her assistance and
contributions.
Some information was based on MEDIATION on Children’s Issues in
Family Law published by Women’s Legal Service Inc Queensland. We
would also like to acknowledge the assistance provided by our CLC-FRC
Network partners at the Perth Family Relationship Centre.
DISCLAIMER
The booklet is a guide only and is not intended to replace legal advice.
We believe that the information about the law and mediation processes
in this booklet is correct at date of publication. However, please refer to
the section “How important is the information on the Certificate to the
Court” on page 39 and be aware that the law regarding costs is
scheduled to change in 2012.
Women’s Legal Centre WA Inc accepts no responsibility for any loss
suffered by any person who uses or relies on the information contained
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
5
in this booklet, or for any loss which may arise due to error or omission
in the information. Legal advice from a lawyer should be obtained.
COPYRIGHT NOTICE
Material in this booklet is protected by Australian copyright law. All
rights are reserved. The material may be used only on the following
conditions:



Copies of the material may be reproduced for individual noncommercial use.
The Women’s Law Centre WA Inc copyright notice must be
included in any copy made.
No material may be altered in any way without the prior written
permission of the Women’s Law Centre WA Inc.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
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WHO IS THIS INFORMATION FOR?
This booklet is for women with child/ren and who have separated from
their partner or are thinking of separating. This booklet also deals
specifically with family and domestic violence situations.
Many women feel unprepared and anxious about mediation/family
dispute resolution. This booklet seeks to answer commonly asked
questions about mediation.
The booklet has information about:

Who must attempt mediation

Who may not have to attempt mediation (can be exempted
from mediation)

Family and Domestic Violence
o
Alternative mediation services

How mediation works

What is expected of you

How you can get the best out of mediation

Tips to help you consider the best interest of your child/ren;

Where to get legal advice

Where to get help for domestic violence
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
7
SOCIAL MEDIA CAUTION
We strongly recommend you do not use social media or internet sites,
eg Facebook or Twitter, to discuss or comment on your separation
and/or negotiations involving your children. You should also be careful
about what you say in emails and text messages.
Emails, text messages and posts on facebook are considered to be “in
writing” and can be used as evidence in court proceedings, such as
being attached to an affidavit filed in the Family Court.
It is important not to discuss or publish information on public websites
relating to your children, your separation, negotiations or court
proceedings.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
8
WLCWA is a not-for-profit community legal centre
funded by the Commonwealth Attorney General’s
Department to provide quality legal services for women
of WA. We also gratefully accept donations. Donations
over $2.00 are tax deductable and receipts can be
provided upon request. Donations in the form of cash or
cheque can be made in person at our office or via mail.
Your donation will help us continue to assist women like
you.
DONATION FORM
Name
Address
(where to send receipt)
Amount
$
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
9
PART 1 – MEDIATION and FAMILY
DISPUTE RESOLUTION
WHAT IS MEDIATION?
Mediation is used in all sorts of situations where people are unable to
reach an agreement to resolve a dispute. The people involved are called
the ‘parties’. In Family Law the ‘parties’ are usually the parents of the
child/ren, but can also be a grandparent or other significant family
member.
WHAT IS FAMILY DISPUTE RESOLUTION?
In Family Law, mediation is called ‘Family Dispute Resolution’. Family
Dispute Resolution is the term used for services, such as mediation, that
can help people who have separated to come to an agreement about
arrangements for their child/ren.
WHAT DOES A MEDIATOR DO?
A Mediator is an independent and unbiased person who assists the
parties to talk about their dispute. They help the parties to identify the
issues and to work towards finding a way of resolving the dispute.
A Mediator is a neutral or unbiased person who assists in negotiations
and conflict resolution. A Mediator who works in family law areas is
called a Family Dispute Resolution Practitioner (FDRP). The Mediator or
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
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FDRP is an independent and unbiased person and does not take sides or
make decisions for you. S/he is there to help you and your former
partner identify and work through the issues about which you disagree.
The aim is to assist you and your former partner to find solutions to
those identified problems and to arrive at an agreement that is in the
child/ren’s best interest.
WHERE DO I FIND A MEDIATOR?
Mediation services for family law disputes involving child/ren are
provided by a range of organisations; for example, Family Relationship
Centres and Legal Aid as well as private providers. Under the Family
Law Act 1975 only Mediators who are registered FDRPs can issue
Certificates (see Page 14/15 for more on certificates).
You should ask Mediator if they are a registered FDRP. You can search
the Attorney General’s website at www.familyrelationships.gov.au for
lists of organisations and individuals that provide mediation/ Family
Dispute Resolution services near you.
You can also get the same information by calling the Family
Relationships Advice line on 1800 050 321.
IS MEDIATION FREE?
In July 2011 Family Relationship Centres introduced fees for people
above a certain income level. However, people with Commonwealth
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Dispute Resolution.
11
Healthcare Cards or people receiving Social Security benefits are
entitled to 3 hours for free. You should ask about fees when you
contact a Family Relationship Centre.
Other services are means tested in accordance with your income. These
services include:

Anglicare

Relationships Australia

Centrecare

Legal Aid WA
There are also a number of private registered Mediators/FDRPs
available through the Attorney General’s website (Find a Family Dispute
Practitioner). Private providers set their own fees. Check with the
service provider before engaging a mediator.
THE CURRENT LAW ABOUT MEDIATION
Not all people with child/ren who separate or divorce are able to agree
about arrangements for their child/ren, such as where they will live, or
the time they will spend with each parent or other family members.
Family Law in Australia recognises that parents, rather than the courts,
are often the best people to know what is best for their child/ren.
Therefore, before applying to the Family Court for parenting orders,
most parents must genuinely try to sort out parenting arrangements
through mediation.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
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DO I HAVE TO GO TO MEDIATION?
If you want to apply to the court for a parenting order, or to change an
parenting order, you will usually first need to get a Certificate which
confirms that an attempt at mediation was made. In that sense
mediation is compulsory. The purpose of the Certificate is to prove to
the court that ‘a genuine effort’ was made to come to an agreement.
The Mediator is the person who issues the Certificates. However, in
certain circumstances the Mediator may decide that mediation is not
appropriate (see more about certificates on page 14/15).
Even if you are already in the Family Court, a Judge or Magistrate might
still send you back to mediation. This is because the court considers
that parents are the best people to decide on arrangements for their
child/ren, rather than a Judge or Magistrate who has not met your
child/ren.
In most circumstances it is best for the Court to be a last option, except
where your solicitor has recommended that you apply to the Court for
an exemption.
YOU CAN APPLY TO THE FAMILY COURT FOR AN
EXEMPTION FROM ATTENDING MEDIATION IF:

there has been, or there is a risk of abuse or family violence; or

the matter is very urgent e.g. your child/ren may be at
immediate risk of abuse, or if they have been removed from
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Dispute Resolution.
13
your care or you may be having difficulty in getting your
child/ren back from a visit. If your situation is urgent seek legal
advice to make an urgent application to the Court, or see the
Duty Lawyer at the Family Court; or

you are unable to take part because of a disability or live in a
remote area where services are not available; or

the application concerns a serious breach of a court order,
made less than 12 months ago; or

you are applying for Consent Orders.
If you do not wish to attend mediation because of domestic violence or
child abuse and you make an application to the court you will have to fill
in a form which tells the court that a Mediator has given you
information about services and options available to you, including
options about alternatives to court.
MUST I PROVIDE MY HOME ADDRESS ON COURT
FORMS?
No, you can use a ‘care of’ address as the court does need to have some
way of contacting you.
WHAT IS A FAMILY MEDIATION CERTIFICATE?
If parties do not reach an agreement, the Mediator will give you and the
other party a Certificate. Some services will not automatically provide a
Certificate so you must ask them to send it to you. You only need to
send a short letter or email giving them your name and address and
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
14
asking that they send the Certificate to you. Keep the Certificate in a
safe place because if you want to make an application to the Family
Court you will need to attach this Certificate to your application. You
can only file a certificate that a mediator has issued within 12 months of
the last family dispute resolution or attempted family dispute
resolution.
The purpose of the Certificate is to prove to the court that ‘a genuine
effort’ was made to come to an agreement by using mediation.
WHAT WILL THE CERTIFICATE SAY?
The Certificate gives information to the Court about what happened at
the mediation. The Mediator will tick one of the following options on
the Certificate:

both made ‘a genuine effort’ to sort out an agreement; or

one or both of you did not make a genuine attempt to come to
agreement; or

the other person did not turn up or did not wish to participate;
or

in the opinion of the Mediator, mediation is not appropriate; or

the mediator did not believe it was appropriate to continue.
If you are exempted from attending mediation because of domestic
violence or child abuse the mediator must also advise you about
services and available options, including alternatives to court action.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
15
PART 2 – DOMESTIC VIOLENCE AND
MEDIATION
WHAT IS DOMESTIC VIOLENCE?
Domestic violence is not just about physical violence.
Family and domestic means violent, threatening or other behaviour by a
person that coerces or controls a member of the person’s family (the
family member), or causes the family member to be fearful.
Examples of behaviour that may constitute family violence include (but
are not limited to):
(a)
an assault
(b)
a sexual assault or other sexually abusive behaviour
(c)
stalking
(d)
repeated derogatory taunts
(e)
intentionally damaging or destroying property
(f)
intentionally causing death or injury to an animal
(g)
unreasonably denying the family member the financial
autonomy that he or she would otherwise have had
(h)
unreasonably withholding financial support needed to meet
the reasonable living expenses of the family member, or his or
her child, at a time when the family member is entirely or
predominantly dependent on the person for financial support
(i)
preventing the family member from making or keeping
connections with his or her family, friends or culture
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
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(j)
unlawfully depriving the family member, or any member of
the family member’s family, of his or her liberty.
Women sometimes don’t recognise that they live or have been living
with family and domestic violence.
Sometimes, particularly with emotional or psychological abuse, you may
not recognise the just how bad the abuse was until you are out of the
situation. This is because this type of abuse wears you down and affects
your self belief, confidence and how you function.
Generally, family and domestic violence is considered to be present
when one person tries to gain or continue power or control over
another person by one or more ways listed below. Family and domestic
violence is often grouped into three common areas:

Physical abuse

Emotional abuse/psychological abuse

Sexual abuse.
PHYSICAL ABUSE
Harming a person You can suffer physical abuse in many different
ways such as hair pulling, slapping, pushing and shoving, skin
twisting, being hit, punched or kicked or being thrown against
things or being hit with objects. You should see a doctor if you
have been abused. A record of your injuries may be useful if you
go to court.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
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Damaging property This type of abuse occurs when something
you own, or the house, furniture or car is damaged or broken. It
can also be breaking plates, punching holes in the wall, or cutting
up your clothing or photographs.
EMOTIONAL AND PSYCHOLOGICAL ABUSE
Verbal abuse This happens when the abuser’s behaviour or
comments makes you feel useless or stupid or insane or generally
damages your self confidence. This type of behaviour can also
result in you believing that everything that goes wrong is your
fault. Psychological abuse includes threats to physically harm
you, kill you, or your family or family pets.
Social abuse This is where the other person restricts your
freedom by preventing you from freely mixing with friends and
family or being put down in front of them. It can also be where
your car use is restricted or not allowed or you are prevented
from going out to work or earn your own money. It also includes
demands to account for all of your time and money you spend or
everything that you do.
Psychological abuse Includes behaviour and comments designed
to put you down and destroy your self confidence. They might
make you believe you are stupid, unattractive, mentally unwell or
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
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worthless. You may be blamed for everything or made to believe
that everything that goes wrong is your fault.
Spiritual abuse This is where the other person damages your selfidentity by behaviours such as criticism of your spiritual beliefs. It
can also be by the abuser quoting religious text to justify abusive
behaviour.
Financial abuse You might not have any say in how the family
income is spent or not be provided with enough money or access
to money for family needs, such as being expected to live off
impossibly small amounts of money. You may be prevented from
keeping any money that you earn, or from having access to this
money.
SEXUAL ABUSE
This type of abuse includes any forced and/or unwanted sexual
contact with the person or anyone else which you do not want, or
do not consent to.
Domestic violence happens in all sections of the community and
in all kinds of relationships. It is harmful not only to the person
being abused but also to any child/ren in the family.
See page 44 for a list of where to get help if you are affected by
domestic or family violence.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
19
CAN I STILL ATTEND MEDIATION IF I AM OR HAVE
BEEN AFFECTED BY FAMILY AND DOMESTIC
VIOLENCE?
It is very important that you tell the mediation service and the Mediator
if there has been violence. It is also very important that you feel safe
and are safe before, during and after mediation. If you make any
agreement with your ex-partner, it is important that the agreement is
safe for you and your child/ren.
You should also consider that it may be in your best interest to get legal
advice as you may qualify for an exemption (see pages 14 about
Certificates and exemptions).
DO MEDIATORS SCREEN FOR SAFETY?
Your first appointment, sometimes called ‘an intake’ or ‘intake
interview’ should always be done with you separate from your
ex-partner. Sometimes this might be done over the telephone.
At this first appointment, the Mediator will hear your story and ask you
lots of questions to help him/her work out if mediation is suitable for
your situation. Different Mediators have different ways of asking
questions, but what they want to know is:

whether there has been any family and domestic violence. If
there is or has been, they also need to know if there are any
risks to you if you attend mediation.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
20

if you are able to stand up for your own or your child/ren’s
needs when negotiating with your ex-partner.

possible risks to the child/ren and if you are afraid of violence
to you or your child/ren in the future.
This is the best time for you to speak up about anything at all that is
worrying you or if you do not understand something. Don’t be
frightened or embarrassed to ask the Mediator any questions that you
want answered.
The Mediator can give you a Certificate if he/she considers mediation to
be unsafe or not the best way of resolving your dispute, or they can
refer you to one of the other family dispute resolution services talked
about on page 23.
See more about Certificates on page 14.
However, there are instances where parties who have experienced
family violence do attend mediation. This may be an option for you, or
it may not. Some women have found the experience empowering,
others find it destructive or unsafe.
There might be challenges involved in attending mediation when you
have experienced family and domestic violence. If your confidence has
been damaged or you are physically afraid you may not be able to say
things that you want to say and, as a result, you may feel pressured to
agree to things that:
In this booklet when we talk about Mediation we are talking about Family
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21

are not in the child/ren’s best interest;

are unworkable or unreasonable;

may expose you or your child/ren to ongoing threats,
harassment or violence.
In order for you to obtain the best and safest outcome for your
child/ren, it is important that you:

seek legal advice before making an appointment; and if you
choose to proceed

find out as much as you can about the mediation process;

consider the best type of mediation to suit you (as set out at
page 23).

prepare for the mediation (the information in this booklet will
assist you).
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
22
PART 3 – ALTERNATIVES
WHAT CAN I DO IF THE IDEA OF MEDIATION IS
DISTRESSING FOR ME?
Safe and successful mediation requires both parties’ involvement and
cooperation in resolving the dispute about their child/ren. Tell the
mediator why this may be distressing for you. If you feel unable to be in
the same room with the other party, tell the Mediator as there are
other ways of doing mediation.
Some of the other ways are:

Shuttle mediation In this type of mediation the parties are in
different rooms so you and the other party are not together at
any time.

Staggered mediation In this situation your appointment will be
on a different day or time to the other party’s appointment.
This way you will not be present at the mediation service at the
same time.

Telephone mediation This is generally offered to you if you live
in a remote area or you or the other party are in prison.

Alternative Dispute Resolution This service is available at Legal
Aid WA where both you and the other person are each
provided with a lawyer to attend the session with you.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
23
WHAT SHOULD I DO IF I BELIEVE MEDIATION IS
UNSAFE FOR ME?
If there has been family and domestic violence you should seek legal
advice as you may be entitled to an exemption from mediation. Your
situation may be suitable for one of the other ways of resolving your
dispute such as Alternative Dispute Resolution or Coordinated Family
Dispute Resolution (discussed above).
If you approach a Family Relationship Centre or similar service, you may
be screened as not suitable for mediation due to reasons of safety. In
this case the Mediator could issue you a Certificate, allowing you to go
to the Court, or refer you to one of the services provided by Legal Aid as
listed above on page 23.
If you have received a Certificate, it is recommended that you speak to a
lawyer before going to Court.
If mediation does take place, a Mediator can stop the process if they
feel it is inappropriate to continue. For example, if the parties are
unable to negotiate, the mediation process will stop and you will be
issued with a Certificate allowing you to apply to court, or you may be
referred to one of the Family Dispute Resolution services provided by
Legal Aid WA.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
24
MEDIATION AND SHARED PARENTING
The law requires most separated parents to make ‘a genuine effort’ to
make parenting arrangements. The law also recognises that it is best for
children if parents can communicate and co-operate after separation.
The starting point for the Family Court of WA is that parents have what
is called “equal shared parental responsibility” for the child. This means
that both parents are responsible for the care and welfare of their child,
including making important decisions about the child, e.g. health care
and schooling. This term does not mean equal time.
WHAT TIME IS REASONABLE?
It may be reasonable for parents to share care and have equal time.
Equal time means that the child/ren spend the same amount of time
with both parents. The most common form of equal time is week about,
eg one week with you and the next week with the other party.
If equal time is not reasonable and not practical, parties should
consider substantial and significant time which means child/ren
spending time with the parent they do not live with, at times that
include more than just every second weekend and half of school
holidays. It should be time such as weekends, week days, and holidays
as this allows that parent to be:
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25
o
involved in the child/ren’s daily routine and
o
involved in occasions and events of significance to both
parent and child/ren.
A 50/50 arrangement is not always practical, for instance where
someone does shift work or has fly-in-fly-out employment.
There are other creative ways of spending time but they must be
reasonable and practical (see more page 27) – in other words will they
work now and in the future and in the best interests of the child/ren?
WHY IS THIS IMPORTANT?
When the Family Court is considering what is in the best interests of the
child/ren they will consider the benefit to the child of having a
meaningful relationship with both parents; as well as the need to
protect the child from physical or psychological harm. The Family Law
Act states that the right of the child to safety and protection from
physical or psychological harm is paramount. It is now very clear that
the safety of children is more important than the issue of maintaining a
meaningful relationship with both parents.
If you have any concerns about the safety of your child you need to
consider what their best interests are. You should give greater weight
to needing to protect children from physical or psychological harm over
the benefits of the child having a relationship with the other parent.
The Family Court will also consider the extent to which a parent has
taken or not taken the opportunity to:

participate in making decisions about major long term
issues in relation to the child,
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26

to spend time and communicate with the child; and

the extent to which each of the child’s parents has fulfilled,
or failed to fulfil, the parent’s obligation to maintain the
child.
HOW DO I KNOW IF MY PROPOSALS ARE
REASONABLE AND PRACTICAL?
Tips for considering what may be reasonable and practical for now and
in the future

The distance between the two homes and how it will affect the
child/ren, eg their friendships and schooling.

The ability of parents to make workable arrangements to deal
with practical problems when child/ren have two homes, eg
school uniforms/ school work left in the other’s home. Will
disputes arise and how will this affect the child/ren?

The ability of parents to communicate and resolve difficulties
say about methods of discipline, health or homework. Will
disputes arise and how will this affect your child/ren?

The impact of any arrangements on the child/ren. This could
mean you look at how the child/ren were cared for before
separation. Were both parents involved in ‘hands-on’ care of
the child/ren and if one parent was not, can they adjust and
how will the child/ren react?
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
27

As well as thinking about the issues that may arise when
child/ren have two homes, consider if it will be possible for you
and the other party to sort out these problems. Consider if
they are likely to cause disputes and, if your child/ren will
witness these arguments, how it will affect them.

Was there domestic violence and how that will affect all of the
issues mentioned above?
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
28
PART 4 – ATTENDING MEDIATION
THE MEDIATION PROCESS
What things must the Mediator tell me about as part of the
mediation?
It is important to remember that the Mediator does not take sides in
the dispute. Therefore, be careful not to confuse the information that
they give you as being their personal view. It may not be.
The Mediator will ask you if you have had any legal advice, checking that
you are aware that the current legislation says that if it is ‘in the child’s
best interest and reasonable and practical’ that each of you should
consider the possibility of the child/ren spending:
1. Equal time with each parent, and if this is not appropriate
2. ‘Substantial and significant time’ with you or their other parent
WHAT SHOULD I KNOW ABOUT ATTENDING
MEDIATION?
Before you start mediation, your Mediator must tell you:
 that they cannot give you legal advice unless she or he is a
also a legal practitioner
 that almost everything said by the parties in the
mediation session is confidential, but explain the
situations where it is not
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
29

about Certificates

about the mediation process

about your rights (including your right to complain about the
service)

his or her qualifications, and

fees charged
If you are trying to make parenting arrangements, the Mediator must
give you information about parenting plans and other services.
IS MEDIATION A CONFIDENTIAL AND PRIVATE
PROCESS?
Where the parties are engaged in shuttle mediation or telephone
mediation anything said by one party can be shared with the other
party. This is because the process is conducted as if both parties are in
the same room.
In most cases mediation is confidential and private. This means that the
Mediator cannot share information about you or the other party with
anybody not involved in the mediation process.
However, there are circumstances where confidentially will not apply in
any mediation process.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
30
WHAT ARE THE EXCEPTIONS TO CONFIDENTIALITY?
The Mediator must disclose anything said in a mediation session if he or
she reasonably believes that the disclosure is necessary for the purpose
of complying with a law, eg mandatory disclosure of suspected child
abuse.
The Mediator may disclose a communication made in family counselling
if he/she reasonably believes that the disclosure is necessary for the
purpose of:

protecting a child/ren from the risk of physical or psychological
harm

preventing or lessening a serious and imminent threat to the
life or health of a person

reporting the commission, or preventing the likely commission,
of an offence involving violence or a threat of violence to a
person

preventing or lessening a serious and imminent threat to the
property of a person

reporting the commission, or preventing the likely commission,
of an offence involving intentional damage to the property of a
person or a threat of damage to property

assisting an independent child/ren’s lawyer to properly
represent a child/ren’s interests.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
31
In addition, a family counsellor may disclose a communication with the
consent of the party who made the disclosure, where that person is an
adult, or where the disclosure was made by a child/ren who is under
18 years, if parents consent to the disclosure. If agreement cannot be
reached the matter may be referred to the Family Court for a decision.
In any of the above circumstances the Mediator may report their
concern to the relevant authorities. If child abuse or a risk of child
abuse is reported then that information may be used in court.
WHAT HAPPENS NEXT?
If you are accepted as suitable for mediation the other parent will be
sent an invitation letter and given a number of days to respond. If there
is no response and you still want to try mediation then a second letter
will be sent.
Depending on your situation, you may be referred to other services
before starting mediation.

As you have read on page 14 if the other party does not turn up
or refuses to participate the Mediator can issue you with a
Certificate which allows you to apply to the Family Court for
Parenting Orders.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
32
HOW DO I BEST PRESENT MYSELF DURING
MEDIATION?

Be prepared. Get legal advice before you attend mediation so
you know what would be a reasonable agreement in your
situation;

Approach the session in a child focused way, by putting your
child/ren first in any proposal you make;

Remember the overriding principle under the Family Law Act is
the best interests of the child/ren;

Think through what you are going to say when you are first
asked to talk. The Mediator will always ask you to tell him/her
what the issues are for you and how you see them best
resolved. You can prepare an answer beforehand;

Stay calm. Nervousness is expected but keep your anger under
check. If you feel yourself becoming upset or intimidated ask
for a break/private session;

Remember your rights. You have the right to be heard, for your
opinions to be respected and to ask for what you want. Be
firm, clear, but respectful of the other person’s perspective
even though it is likely to be different from yours;

Just as you have the right to be heard, so does your ex-partner.
Be mindful not to talk over them or interrupt.

Watch your negative body language, such as facial grimaces
and eye rolling.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
33

Trust your own instincts. You are under no obligation to agree
to any particular proposal put forward by your ex-partner,
particularly if you feel bullied or are unhappy with what is being
proposed.

Remember that you are expected to make a ‘genuine effort’ so
be sure to raise alternative proposals by suggesting what you
think would work for the child/ren. Explain why you think this
would be in their best interest.

It is okay to request legal advice before you finalise what you
agree or give your consent. You should do this. You can request
to come back to a further session.

Be careful what you sign. Get legal advice first. Only sign when
you are sure that what you have agreed is in the child/ren’s
best interests and you are certain it will work now and in the
future. You can check whether it will work by reality testing.
Ask the Mediator to help you with this or you might ask
questions like, “How are you going to manage to have the
child/ren every Monday and Tuesday night when you are on
shift work or fly in fly out?”

Stay child focused at all times.
WHAT HAPPENS AT THE FIRST MEDIATION
SESSION?
You can expect the Mediator to speak first. This is to explain to you and
the other party the process.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
34
The Mediator will generally ask you and the other party to separately
discuss what you think are the main issues as you see it, and what you
would like the outcome to be.
Identifying the main issues The Mediator will try to assist you both to
identify what the main issues are for each of you. A list of those issues
can provide some structure for the mediation session.
The Mediator will next assist you both to work through each of the
issues. It is okay to add issues as the session progresses. It is natural to
be nervous at the beginning, causing you to sometimes forget important
points that you would have otherwise put on the issue list.
It is okay to take notes during the mediation process and to bring in
notes that you have prepared beforehand.
You and the other party, in turn, get to talk about how you each feel and
express your points of view. The Mediator will try to get each of you to
consider what is in the child/ren’s best interests.
You may find it hard to talk directly to the other party. This is normal.
The Mediator will assist you, sometimes by saying what you have said in
another way, (called ‘reframing’) or by encouraging you to tell the other
person directly how or why you feel a certain way.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
35
The issues of ‘equal time’ and ‘substantial and significant time’ might be
raised by the Mediator, for you to consider at this point (refer to
definitions at page 25).
Private Sessions Sometimes the Mediator may stop the session so
he/she can talk to you away from your ex-partner in a ‘private session’.
They will then speak to the ex-partner separate from you. They might
do this to check how you are going. This is also an opportunity for you
to tell the Mediator about any concerns you have, either about the
process or about the behaviour of the other person.
You can ask for a break at anytime if you are finding the process
upsetting.
During the ‘private session’, the Mediator might also seek to challenge
your thinking or provide different options for you to think about. This
does not mean that the Mediator does not agree with you or is siding
with the other person. What he or she is doing is using a technique to
change the energy of the session, and often find a resolution.
When back in the session with the other party, the Mediator might seek
to challenge each of your thinking in a similar way. It is important to
remember that they are an independent person, focused on assisting
each of you work towards some agreement and to find solutions.
Generally sessions run for two hours. Sometimes several sessions are
required before an agreement can be finalised.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
36
WHAT ARE THE IMPORTANT POINTS TO REMEMBER
WHEN ATTENDING JOINT SESSIONS?
You are both there to try and work out arrangements that are in the
best interest of the child/ren.
You can:

write up and bring written notes into the mediation session,
eg an outline of your issues

ask for a break/private session at any time

Tell the Mediator if you have any concerns by requesting a
private session

ask to have the session in the absence of the other party, i.e.
through ‘shuttle mediation’ (refer to page 23).
CAN I HAVE A LAWYER REPRESENT ME AT
MEDIATION?
You should seek legal advice before and after mediation and before
signing any written agreements. Generally, lawyers do not take part in
mediation.
However as mentioned on page 23 both parties are assisted by lawyers
in the services provided by Legal Aid WA.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
37
CAN MY NEW PARTNER OR OTHER FAMILY
MEMBERS BE PART OF THE MEDIATION SESSION
WITH ME?
In general, only the parents or full time carers of child/ren are present at
mediation sessions. Arrangements can be made to include other people
such as grandparents if an agreement is reached.
In this booklet we talk about mediation between you and the other
party. Usually the other party is the other parent but it could be between
you and someone else who has had full time care of your child/ren.
CAN CHILDREN BE INCLUDED IN MEDIATION?
No, but a family counsellor may talk with your child/ren when you and
the other parent are attending mediation. This will only happen with
parental consent.
WHAT DO I DO IF MEDIATION HASN’T WORKED OR
IS NOT SUITABLE FOR ME?
You may be able to seek the assistance of a lawyer to directly negotiate
arrangements. Or can apply to the Family Court for assistance in
resolving your dispute. You will need the original Certificate to be able
to file a Court application.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
38
HOW IMPORTANT IS THE INFORMATION ON THE
CERTIFICATE TO THE COURT?
The Judge or Magistrate will take special interest in the box that the
Mediator has ticked on your Certificate.
If the ticked box says that you or the other party have not made ‘a
genuine effort’ then a costs order may be made against whichever party
has not made a genuine effort. For example if your ex-partner has not
made a genuine effort and you have legal fees to pay, the court may
order that the other party pay those fees. Similarly if it was you who did
not make ‘a genuine effort’ and the other party had legal fees to be
paid, the court could order that you pay those fees.
Please be aware that the law regarding costs is scheduled to change in
2012. It is advisable that you to seek legal advice about these changes
before you engage in mediation.
Not making ‘a genuine effort’ may make it harder to get legal aid.
How you act or conduct yourself during mediation is important (see
page 33 “How do I present myself during mediation” for tips).
WE HAVE REACHED AGREEMENT IN MEDIATION,
WHAT NOW?
A PARENTING PLAN is an agreement that is signed and dated by you
and your ex-partner which sets out how the child/ren will be cared for
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
39
and supported. It is not a legal document and not legally enforceable.
However, it can be used as evidence in court (see more below/on
page 41).
Ask the Mediator to provide a written copy of the agreement for you
and your ex-partner. This may assist you both to be clear about what
you agreed to.
BE CAREFUL!
You should be careful about signing anything without taking time to
think things over and get legal advice.
You should not be expected, and do not have to, sign anything at the
time of mediation. You have the right to go away and think about the
agreement before signing it. You can come back to the Mediator with
changes to put forward.
You can ask a lawyer to look over the written agreement before you sign
it.
WHAT IF I HAVE ALREADY HAVE A FAMILY COURT
ORDER?
If you have an existing Family Court order and you later sign a Parenting
Plan it can have the effect of changing the terms of your court order,
even though you have not filed this with the court.
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
40
It is also a good idea to get some further legal advice before signing any
agreements. This is because:

Once you sign the agreement it becomes a Parenting Plan;

Parenting Plans sometimes get used in Court as evidence; and

arrangements for child/ren can have consequences for division
of property and for child support assessments.
HOW DO I MAKE THE AGREEMENT LEGALLY
BINDING OR ENFORCABLE?
An agreement reached in mediation is usually written up as a Parenting
Plan which is signed and dated by both parties. To be legally binding
and enforceable it needs to be filed with the Family Court as Consent
Orders. It is recommended that you get legal advice or the assistance of
a lawyer to make this application because it is important that the
agreement you send to the Court is written in the correct legal format.
WHAT IS THE DIFFERENCE BETWEEN CONSENT
ORDERS AND A PARENTING PLAN?
A Consent Order, once filed with the Family Court, becomes a legally
binding and enforceable court order. Parties can apply to the Court if
the orders are not followed. A Parenting Plan is not a Court order. It is a
voluntary written agreement that sets out your intentions regarding
your child/ren. However, should the Court need to make a decision
about your child/ren in the future, it will give consideration to your
parenting plan. There are no penalties for breaching a Parenting Plan.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
41
PART 5–LEGAL ADVICE AND RESOURCES
LEGAL ADVICE
Albany

Albany Community Legal Centre 77 Albany Hwy, Albany.
Ph (08) 9842-8566, Freecall 1800 606 060
Armadale
 Armadale Information and Referral Service 28 Sexty St,
Armadale Ph (08 9497 1406
Bunbury

Bunbury Community Legal Centre 101 Victoria St, Bunbury.
Ph (08) 9791-3206 bunburyclc.com.au
Fremantle
 Fremantle Community Legal Centre Queensgate Building,
William St, Fremantle. Ph (08) 9432 9790
www.freofocus.com.au
Fitzroy Crossing
 Marninwarnitura Family Violence Prevention Legal Service
Lot 284 Balannjangarri Rd Fitzroy Crossing WA 6765.
Ph (08 9191 5284
Geraldton
 Family Advocacy Service 103 George Rd, Geraldton.
Ph (08) 9965-4654
 Geraldton Resource Centre Lotteries House 114 Sanford
Street. Ph (08) 9938-0600 www.grc.asn.au
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
42
Gosnells

Gosnells Community Legal Centre 2232 Albany Hwy
Gosnells. Ph (08) 9398-1455 www.gosclc.com.au
Kalgoorlie
 Goldfields Community Legal Centre 23 Maritana St,
Kalgoorlie. Ph (08) 9021-1888, 1300 139 188
Karratha


Pilbara Community Legal Service, Welcome Lotteries House,
Suite 1, Morse Court, Karratha, WA 6714 Ph (08) 9185 5899
No7/Lot 3642 Balmoral Road, Karratha WA 6714
Ph (08) 9144 1611
Kununurra
 Kimberley Community Legal Centre, Kununurra 4 Papuawa
St, Kununurra. Ph (08) 9169-3100, Free call 1800 686 020
Mandurah
 Peel Community Legal Services 2 Sutton St, Mandurah.
Ph (08) 9581 4511
Newman

Pilbara Community Legal Service, Newman House, Cnr Iron
Ore & Calcott Sts, Newman WA Ph (08) 9175 9930,
9175 9931, 9175 9932
Joondalup/Mirrabooka
 Northern Suburbs Community Legal Centre
o Joondalup Office Building 1, Edith Cowan University
270 Joondalup Drive, Joondalup, WA 6027
Ph: (08) 9301 4413
o 10 Cobbler Place Mirrabooka. Ph (08) 9440 1663
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
43
Perth
 Legal Aid WA Info Line: Ph 1300 650 579

The Women’s Law Centre of WA, 445 Hay Street, Perth, (08)
9272 8800, Freecall 1800 625 122 www.wlcwa.org.au

Citizens Advice Bureau, 25 Barrack St Perth. Ph (08) 9221 5711

Sussex St Community Law Service, 29 Sussex St, East Victoria
Park. Ph (08) 6253 9500 www.sscls.asn.au
Rockingham
 SCALES Community Legal Centre (Southern Community Advocacy
Legal & Education Services) Suite 3 St Nicholas Community
Centre 14 Council Avenue Rockingham. Ph: (08) 9550 0400
Roebourne
 Pilbara Community Legal Services, 3 Padbury Street, Roebourne
WA 6718. Ph (08) 9182 1169
South Hedland
 Pilbara Community Legal Services, Lotteries House, 2 Leake St,
South Hedland, WA 6722 Ph (08) 9140 1613
Family Court of Western Australia
 Information and video “Consider the Children,” are available for
viewing on the Family Court’s website at:
www.familycourt.wa.gov.au under “About the Family Court” Online Information Sessions.
Family Relationships Online
 Ph 1800 050 321
 www.familyrelationships.gov.au
Legal Aid WA
 Ph 1300-650-579
 www.legalaid.wa.gov.au
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
44
FAMILY AND DOMESTIC VIOLENCE HELP
Domestic Violence Legal Unit (Legal Aid of WA)
 Ph (08) 9261 6254 / 1300 650 570
Aboriginal Family Law Services
 Phone (08) 9328 9384 for information about offices in
regional locations
Women’s Domestic Violence Helpline 1
 (08) 9223 1188 / 1800 007 339 (Country)

Crisis Care 1800 199 008 (Free Call)
Crisis Care can arrange help including temporary accommodation,
protection for children, financial aid, counselling and support services
Domestic Violence Advocacy and Support (DVAS) Central
 Ph 9227 8122
Email: [email protected]
DVAS Central is a free service which helps women who have experienced,
or are at risk of domestic violence access support DVAS provides people
with a safe and friendly environment to access advocacy, legal and DCP
services.
Homelessness Advisory Service:
 Ph 1800 065 892
Multicultural Women’s Advocacy Service (MWAS)
 Ph 9227 8122 Email: [email protected]
MWAS promotes the safety of women, with or without
children, from culturally and linguistically diverse
backgrounds. The service is available to women who are
recent arrivals or long-term residents who have experienced,
or are at risk of domestic violence.
In this booklet when we talk about Mediation we are talking about Family
Dispute Resolution.
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RESPECT Online - chat with a qualified and experienced counsellor
 1800 737 732
 24-hour relay call numbers
 TTY/voice calls 133 677 Speak & Listen1300 555 727
 www.1800respect.org.au
SARC - Sexual Assault Resource Centre
 24hr Crisis Line for recent sexual assault 1800 199 888 (free call)
 Crisis telephone counselling between 8.30am and 11.00pm daily
Ph (08) 9340 1828
COUNSELLING

DV Advocacy Counselling (Nardine)
(08) 9472 9470


DV Children’s Counselling (Pat Giles)
DV Women’s Counselling (Pat Giles)
(08) 9328 1888
(08) 9300 1022

Kinway (Anglicare WA)
(08) 9263 2050
1800 812 511

Relationships Australia
(08) 9489 6363
1300 364 277 (Info Line)

Waratah Support Centre (Bunbury):
(08) 9791 2884
1800 017 303 (Country)
TENANCY SUPPORT

Tenants Advice Service
(08) 9221 0088
1800 621 888 (Country)

Ruah Tenancy Support
(08) 9493 5021
1800 065 892 (Country)
In this booklet when we talk about a Mediator we are talking about
a Family Dispute Resolution Practitioner
46