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
- 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.
- 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.
- 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.
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?
High Conflict FDR
You’ve got to speak nicely
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.
They won’t mediate? Try Mediator Facilitated Negotiation
- 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.
- 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