FDR and Protection Orders
A Protection Order under the Family Violence Act 2018 is granted if family violence is inflicted against a person by any other person with whom that person is, or has been, in a family relationship. Violence means physical, sexual or psychological abuse, or any combination of these forms of violence. The trauma of a family breakup may lead to family violence, or arise from it.
If there are children at the heart of the relationship, it may still be in their best interests to proceed through FDR, especially given its speed. The FDR Provider has a duty to ensure that the children who are the subject of the dispute are given any reasonable opportunities to participate in the decisions affecting them that the FDR provider considers appropriate. The FDR Provider (mediator) must make every endeavour to assist the parties to reach an agreement on the resolution of those matters that best serves the welfare and best interests of all children involved in the dispute. These duties are advanced while mediating and always considering the safety of both adult parties.
The FDR Centre will enable mediations to occur where one party has a protection order, if both parties agree. Online video technology can be used, for example, where a protection order exists, where it is not safe to have both parties in the room. Shuttle mediation is another option, where the mediator goes between rooms and the protected party does not have to undergo the triggering impact of hearing and seeing their ex-partner.
In order to have the mediation occur, the protected person may suspend the standard no-contact condition by giving consent to contact, and may reinstate the standard no-contact condition by cancelling consent to contact. Either may be done any number of times. Consent needs to be given in writing, but may be retracted verbally. It may be an issue who gets the section 12 certificate if one party decides not to proceed with mediation once it has started.
An FDR mediator is expected to be trained to assess parties to mediation, and their circumstances and history, for factors (in particular, in relation to possible family violence) indicating risks that may arise during, or in the context of, mediation sessions. This will affect whether the mediation occurs on-line for example, if at all, as the FDR Centre as delegate of the mediator will first assess whether the matter is suitable for mediation.
Proceeding to Court
A section 12 certificate is not required to be filed with an application that is accompanied by an affidavit that provides evidence that at least one of the parties to the dispute, or a child of one of the parties, has been subject to family violence by one of the other parties in the dispute.
Court can be the safest forum for the dispute to be heard, but may also lead to lengthy court proceedings.
Conclusion
A parenting agreement obtained by a protected person and their ex-partner may best serve the welfare and best interests of the children. It is possible to obtain an enforceable agreement by then taking the further place of converting the parenting plan into a parenting order.
