The question “What are my choices when they won’t mediate?” is a common one we get. This article is written with a specific scenario in mind and may not apply to your situation if different.

The interaction between Domestic Violence and Family Law is complex and if you have a domestic violence order against you it is really important that you get good quality advice.

Tailored Information and guidance is available by booking in for our Separation and Divorce Consultation.  This session is a good place to start working with Interact Support. It is as appropriate for people considering separation as it is for people currently in court but not feeling that they have the right information and guidance to make informed decisions. If you have issues related to shared care of children or property settlements following separation then book in for a consultation.

Enough of that. Today’s Scenario.

This Scenario – Dad seeking time with a child. A Domestic Violence Order is in place.

You are a father who has had a family violence order against you protecting your child’s mother and your child. 

You may still be in the Magistrates Court while you are reading this or that court process may have run it’s course and you have a Family Violence Order against you preventing you from normal contact with your children and their mother.

By now you may not have not seen or even spoken to the children for several months or even longer.

You are feeling angry, upset, sad, frustrated and frightened that you will never see your child again. You’ve made contacts with one of the men’s rights groups who have told you how unfair the system is and how stacked against men it is. They have talked to you about parental alienation and you are starting to blame your former partner for everything that has happened to you and perhaps forget about your role in the fight that started all of this.

You may have had to move home with your parents and are feeling humiliated by that or are in an apartment that is too quite and horrible to be in all by yourself. 

You contacted Relationships Australia or some other mediation service because the family violence order allows for mediation about your child. They reviewed the situation and issued you with a Section 60i Certificate on the spot or attempted to contact your ex about mediation but she refused “due to family violence.”

You went to a lawyer and asked them “What are my options” and told you that you need to immediately issue and go the the family court.  They might have also mentioned that they need $20,000 into their trust account to get started.

You’re feeling pretty low at the moment and may be bottling it all in and just saying “I’m OK” when someone asks “r u OK?”

Well I don’t think you are OK and that is perfectly normal and expected with everything that has been going on. Even though it isn’t something you’ve normally done now is the time you need to reach out and get some help and not help from people who are just going to make you feel more angry and bitter about things.

The top three for help

  1. Lifeline on 13 11 14 are amazing people. They are staffed by well trained volunteers who wont judge you and are always available 24 / 7 to have a chat. You don’t have to be suicidal to call them. It’s OK to call if you are just feeling lonely and distressed.
  2. Your Local GP – Go and see your doctor and tell him or her what has been going on.  By now you are probably depressed and/or suffering from an anxiety disorder. The problem with depression and anxiety is that they are imbalances in the mind brought on by the circumstances you find yourself in and they mess with your thinking. Unless you are able to get the help you need to get your thinking straight you run the risk of making dumb decisions that are going to cost you big time.  If you are honest with your GP (instead of playing the tough guy) they will probably recommend a Mental Health plan and refer you to a specialist who can help you to get your head straight.
  3. Interact Support. We’ve got some pretty amazing people as well. We help with the Family Law side of things by helping you to understand and evaluate your options and provide Family Dispute Resolution services even when there are issues related to violence and high conflict.  If you can get an agreement with your ex then that can be made into Consent Orders and all for much less than it costs to even get started with the court.Your individual circumstances might be a bit different so book in for a Separation and Divorce Consultation if the article raises more questions than it answers.

Which Court?

The state Magistrates Court is the jurisdiction for family violence orders. These orders are a civil matter designed to prevent someone who has been accused of violence from committing further acts of violence.

Violence is defined very broadly and includes physical, sexual, emotional, financial and psychological abuse. If child witnesses violence in their home between their parents that is considered to be family violence against the child. It is likely that an argument between you and your former partner started the whole situation you find yourself in and you may or may not agree that there has been family violence in your relationship.

Many people experienced what is now termed family violence when they were growing up. If your father controlled your mother by putting her on an allowance, physically manhandling her when he was angry or saying sarcastic and mean things to her if he thought she was being disrespectful then that was all family violence.

You may not realize it but witnessing their parents fighting can cause harm to a child’s emotional and physical development, even if they have not been touched or had the violence directed at them. Fighting in front of children messes with their brain. Literally. It actually affects the way that their brain develops making them more prone to mental health and relationship issues as adults. If you grew up in a home that was full of anger and stress then you may now be experiencing the legacy of that in your own relationship.

The family violence court orders are designed to keep people apart until anger cools. Basically the court wants to keep you apart until there is no danger that things will escalate into more or worse violence. There are many relationships that end by Domestic Violence Order but if you both think that there is a future together it is possible to re-negotiate your relationship.

Remember that the Order against you is an order of the court. Your ex can’t give you permission to move back in or to do anything that is prohibited by the court. Don’t do something you are not allowed to do. Follow your order to the letter because breaches of these orders can have very significant consequences including jail.

It will usually take three or six months for a contested order to be heard and a judgement made. During that time there will be several hearings and if you are represented you’ll probably be paying between $1,500 to $3,000 a time.

Accepting an order

If you did do what you have been accused of doing and you accept the order it may be for one or two years or even longer if the violence was very severe. If you breach the order you could be facing criminal charges for violence, large fines or time in jail.

That is even if the breach was a technical breach of the order or something your ex said you could do. By technical breach I mean you did something prohibited by the order even if the thing you did was not violent.

For example posting a photo of your son on Facebook with a comment “Daddy loves you. I miss you mate.” or sending a birthday card could be a breach of an order. It depends on the wording of your orders. Get advice if you don’t understand your order. The consequences of breaching could be very serious.

If you didn’t do what you are accused of but have accepted an order based on legal advice from a duty lawyer or because you couldn’t afford to fight the application it is going to affect your family law position. You have an order saying that you have to be restrained from committing family violence.

That is the reality even if you didn’t and don’t intend to commit family violence.  Make sure your frustration from the next couple of years doesn’t lead you to breach the order.

Contesting the order

If you have contested the order you may or may not have been successful. It’s hard to prove that something didn’t happen if there were no witnesses. If there an incident even though you don’t think that it was that bad and shouldn’t be regarded as family violence it probably was. Punching a wall, grabbing someone and shaking them or physically pushing them to the side so you can leave will more than likely end up in an order.

If your job depends on you having a gun license or will be impacted, for example if you work in security, armed forces or police, you may have no other option than to contest the order or you will be out of a job. Get in touch as we can refer you to a lawyer who will do a Legal Advice and Strategy Session.

Whatever your journey through the Magistrates Court has been, you need to know that the Magistrates Court can stop you from seeing your children but it doesn’t grant you permission to see them.

The courts you have to go to force a reluctant ex-partner to allow time with children are the family courts.

Did you notice the wording. “force a reluctant ex-partner”?

The court can attempt to force a reluctant mother to allow you time with children eventually. However if she is unwilling it may take a long time, it will cause a lot of trauma and it will cost you a lot of money.

The result, if she eventually caves in under the pressure and the court decides that some contact should be allowed, will probably be a grudging compliance and traumatized kids. Even if she is following the recommendations to protect the children from the detail of Family Court actions they will pick up on her distress no matter how she tries to protect them from what is going on.

What options do I have?

There are several ways that Interact Support can help to negotiate for you to spend time with your children other than standard FDR.  If a successful arrangement can be made you can then apply for orders from the court (Consent Orders) which will be enforceable orders the same as if you’d gone to court for a couple of years and spent $50,000 to $100,000 to try and force the issue. Consent Orders for parenting cost $1,500 with Interact and shouldn’t cost more than $4,000 – $5,000 with a lawyer.
You may have already tried FDR but if there has been a history of family violence the standard mediation service may not be suitable and you may have been issued with a section 60i Certificate to go to court.
To you it may be that there was an incident or situations that got out of control or whatever other reason / excuse you have. For her there were probably some very frightening experiences during the relationship.  A single incident of violence can blot out the memory of many years of generally happy marriage.  Women are also very good at pretending that everything is OK when they feel threatened. You may not even have been aware how frightened she was when you used your “take control” voice or stood over her to show her who was the boss.
Family violence is an exception to the mandatory obligation to participate in Family Dispute Resolution but it doesn’t have to mean that your only option is to go to court.
Interact Support has a High Conflict Family Dispute Resolution service and a Mediator Facilitated Negotiation service which can help in circumstances such as these.

High Conflict FDR

High Conflict FDR is a Family Dispute Resolution service co-facilitated by Family Dispute Resolution Practitioners. If she refuses to participate we can still issue you with a s60i Certificate allowing you to apply for court orders.
If she does agree to participate our practitioner would meet with both of you individually by phone or video meeting and do the mandatory pre-mediation process. This will require several contacts because during that process we would negotiate an agenda for the mediation in advance so that there are no surprises for anyone. It is important that everyone goes into HC FDR knowing what to expect and are able to get advice in advance.
As the service is only offered by phone or video meeting we encourage participants to be in the presence of their support people.  That way they also hear what is going on, can advise you in real time and in the case of anyone who has suffered trauma, help them to manage the emotions related to communicating with you.
We may have to use a “shuttle” negotiation process where you are not both live in the video meeting at the same time. This would be if there has been high conflict and ongoing trauma making your former partner reluctant to see or hear you. Often they will be willing to participate as long as they don’t have to come to a building where you are and are in a safe and supported place.
Once the agenda is agreed the mediation session (again by phone or video meeting) will happen. This gives the opportunity to clear the air, for you to find out why they are reluctant to allow contact and give you both the opportunity to try and work out a trial agreement.

You’ve got to speak nicely

One of the things that we are very strict about in the HC FDR process is behavoural ground rules. There is no tolerance for abusive language, disrespectful behaviour or name calling from either party.

Our goal in the first HC mediation session is to reach an interim agreement. These may be a series of steps needed to gradually introduce contact until a normal relationship can be established with your child.

A slow re-introduction may be necessary if you have a history of physical violence or emotional abuse that means there is a real risk that you could lash out and hurt your child if you had unsupervised care of them. If you continue to be seen as a risk then it may not be in the best interests of your child to be put in that kind of situation. If you have problems it is important that you do the work on yourself to deal with them.

We know that you have not walked away and forgotten about your kids because you love them and think that it is important for them (and you) for them to be in your life. But if you have anger management issues, drug or alcohol addiction or mental health issues that is affecting your behaviour your kids need you to do the work to sort yourself out.

Even if you grew up in a family where you were treated much worse than anything you have ever done that was then and this is now. The family law system is set up to try and ensure that children have meaningful relationships with all of their family members but only if it is safe for the.  Do everything you can to be safe and also to be seen to be safe.

Even if there has been behaviour that is out of character or what you are accused of didn’t happen or the high conflict was mutual it may take time for your kids to adjust if they haven’t seen you for a long time. They will have suffered from attachment issues if you used to be close. They may be angry, shut off or even frightened of you now.
You won’t just have the job of rebuilding trust with your ex. You’ll have the same job with the kids if they have been affected by not seeing you. It will be even worse if the last time they saw you was during a violent incident.
It might take some time and patience but the only way to get back to the loving relationship you once had is to start. If you did have some issues that affected your parenting and you do the work on yourself to deal with the issues you may find that you end up with a better relationship than you have back then.
If an agreement is reached in HC FDR a trial period will be agreed. We use a trial period in HC FDR because where there is high conflict trust will have been damaged and it is very difficult, if not impossible, for a protective mother to voluntarily  agree to a long term commitment when they don’t know for sure that you are safe now.
After the trial period another mediation session is scheduled to do a review to make sure that it is working for everyone, including your child.  If an incident occurs then an earlier meeting can be scheduled to discuss what happened and work out what that means for your interim agreement.
If you both agree that the arrangement is working, or will work with some minor modifications, then you can sign the agreement and it becomes a Parenting Plan.
Another session may be needed if you haven’t worked out longer term issues like spending time with your child on special family and religious days, holidays, travel, schooling and anything else specific and important to your family. If you want Consent Orders that type of detail should be included.

Consent Orders

Once you have worked out long term shared care arrangements you’ll be in a position to apply for Consent Orders.
Interact Support has a Consent Order service where a Family Dispute Resolution Practitioner, with additional training, works with your family and a lawyer to draw up the orders. The service costs less than just going to a lawyer because the mediator is more efficient at negotiating any further details needed and already knows your family and what you want to lock in with your Consent Orders

They won’t mediate? Try Mediator Facilitated Negotiation

If your ex-partner refuses to participate in HC FDR you could try Mediator Facilitated Negotiation before you try to force them through lawyers letters or going to court.
In Mediator Facilitated Negotiation our practitioner will work with you to develop a proposal for a parenting agreement. Once the proposal is clearly written we will contact her and put the proposal to her. Our practitioner is a Family Dispute Resolution
She will have the opportunity to identify if there is any part of the proposal she agrees with, what she absolutely refuses and what she proposes in counter offer.  That goes back to you and so on until we can reach a compromise acceptable to you both.
That then becomes a trial agreement which is tested for a time and then we check in with you both to see if the agreement is working for you, what changes are needed and then that becomes a Parenting Plan. Once again that can become Consent Orders once you’ve got all the details needed for orders.
Costs
The hourly cost for High Conflict FDR services is $198 per person per hour. The basic cost for HC FDR is $396 per person for the first stage to do the intakes and develop the agenda.
  • If she refuses to participate at all then it would be $198 for whatever work has been done and to issue the S60i Certificate.
  • If she agrees to participate each mediation session runs for 2 hours and costs $396 each. You should only need one to get some time with your daughter arranged but will need two or three sessions to get to the detail needed for consent orders.  Between $396 – $1,188 per person.
  • If she refuses mediation you’ll have paid $198 to get the s60i but could still try mediator negotiation.  It’s better than lawyer negotiation because we are a neutral negotiator not an advocate for you like the lawyer would be. That means that we are allowed to talk with her and understand what her issues are if she’s refusing contact and helping to find a way to resolve them so that your child can get to know their father.  The cost of that service is $198 per person per hour that we spend negotiating.
It is likely that she’ll use expense as an excuse to not participate so you may be faced with paying her half of the costs as well.  While this may not feel fair to you to pay the full fee she may be on a low income due to having and caring for children and/or is reluctant to spend money on FDR because she hopes you’ll just go away and leave her and the children alone.
I don’t know if you’ve spoken to a lawyer about the costs of going to court but they will be significant.  Generally $10,000 – $20,000 to prepare the application. You have to write an affidavit which contains your side of the story and proposed orders which say what you want the court to do.  There will then be a number of court hearings.  If you are represented they will generally cost between $2,000 and $10,000 per day and you’ll have several days where you have to go to court for mentions before there is a trial.
There will be a mandatory family report where a specialist will meet with you, your ex and the children. If they have not seen you for a long time this may not go too well.
Depending on how complex things get the trial may be set down for several days.  There are also application and court fees that you will have to pay.
Self-representing is possible but it is very complex and there are a lot of documents that you have to produce, respond to and timelines that you have to meet.
We can refer you to lawyers who can help at a rate of between $275 and $350 an hour or $1,500 – $2,000 a day in court but believe me the costs add up very quickly.

Summary Conclusions

  • Get help to deal with your emotional distress (you’re not helping yourself or anyone else if you get clinical depression)
  • Do not under any circumstances breach your Family Violence Order by doing something that it prohibits even if your ex says you can
  • Contact Interact Support for a Separation and Divorce Consultation to help you to understand your options and develop a goal and plan to improve your situation
  • Don’t think that going to court is the only option available
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