CHILDREN & FAMILIES ACROSS BORDERS Helen Freris National Services Manager / Manager, International Family Mediation Service Accredited Family Dispute Resolution Practitioner ISS - Australia

Introduction International Social Service (ISS) Australia’s Family Mediation Service Launched in 2012 Fee-based service offering family mediation in response to the needs of cross-border families Focusing on disputes concerning arrangements for children Facilitated via telephone or skype

Draft charter of Core Principles in International Family mediation (1 of 2) 1. Voluntary participation 2. Suitability of mediation 3. Decision-making by the participants 4. Access for each participant to independent legal advice 5. Confidentiality

Draft charter of Core Principles in International Family mediation (2 of 2) 6. Independence 7. Impartiality 8. Consideration of the rights and the interests of the child 9. Qualifications of international family mediators 10. Cultural awareness and sensitivity of mediators

1 Voluntary Participation (1 of 2) Legal basis of compulsory family dispute resolution in Australia: “Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.” (Family Law Act, 1975 (CtH) s 7)

Voluntary Participation (2 of 2) Recommendations to enhance voluntary participation in mediation (Hedeen, 2005) “ 1) referrals to mediation should be explicitly free of coercion; 2) mediation consent forms should be executed at the outset of mediation to affirm the disputants' informed consent and understanding of a) the bounds of acceptable mediator pressure, b) their rights to terminate mediation at any time, and c) the court's policy that nonsettlement will not adversely affect either party's case 3) "cooling-off period" between the mediation session and the date any mediated settlements are finalized should be instituted 4) a blanket prohibition on substantive mediator reports and recommendations to the court should be enforced.”

2 Relevance (suitability) of mediation (1 of 3) Legal basis for assessment of suitability for family dispute resolution in Australia: FAMILY LAW (FAMILY DISPUTE RESOLUTION PRACTITIONERS) REGULATIONS REG 25 Family dispute resolution practitioners -- assessment of family dispute resolution suitability (1) Before providing family dispute resolution under the Act, the family dispute resolution practitioner to whom a dispute is referred must be satisfied that: (a) an assessment has been conducted of the parties to the dispute; and (b) family dispute resolution is appropriate.

Relevance (suitability) of mediation (2 of 3) (2) In determining whether family dispute resolution is appropriate, the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters: (a) a history of family violence (if any) among the parties; (b) the likely safety of the parties; (c) the equality of bargaining power among the parties; (d) the risk that a child may suffer abuse; (e) the emotional, psychological and physical health of the parties; (f) any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

Relevance (suitability) of mediation (3 of 3) (3) If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is satisfied that family dispute resolution is appropriate then, subject to regulations28 and 30, the family dispute resolution practitioner may provide family dispute resolution. (4) If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is not satisfied that family dispute resolution is appropriate, the family dispute resolution practitioner must not provide family dispute resolution.

3 Decision-making by the parties Refers to parties’ self-determination and ownership of mediation outcomes

4 Access for each party to independent legal advice Legislative framework concerning Australian family mediators and Legal advice: FAMILY LAW (FAMILY DISPUTE RESOLUTION PRACTITIONERS) REGULATIONS REG 28 Information to be given to parties before family dispute resolution (1) Before family dispute resolution is started under subregulation 25 (3), each party to the family dispute resolution must be given the following information: (a) that it is not the role of the family dispute resolution practitioner to give people legal advice (unless the family dispute resolution practitioner is also a legal practitioner”

5 Confidentiality (1 of 2) Legal basis of confidentiality in Australian family dispute resolution: FAMILY LAW ACT SECT 10H “Confidentiality of communications in family dispute resolution (1) A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section. (2) A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory. (3) A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by: (a) if the person who made the communication is 18 or over--that person; or (b) if the person who made the communication is a child under 18: (i) each person who has parental responsibility (within the meaning of Part VII) for the child; or (ii) a court.

5 Confidentiality (2 of 2) (4) A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of: (a) protecting a child from the risk of harm (whether physical or psychological); or (b) preventing or lessening a serious and imminent threat to the life or health of a person; or (c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or (d) preventing or lessening a serious and imminent threat to the property of a person; or (e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or (f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly. (5) A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families. (6) A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).”

6 Independence of the mediators and the process This refers to the institutional and procedural independence of mediators and the mediation service Parties’ ownership of the mediation process and outcomes

7 Impartiality This refers to the mediator’s neutrality to the parties The mediator’s task is to facilitate procedural fairness

8 Consideration of the rights and the interests of the child (1 of 4) Based on the rights of children as stated in the United Nations convention on the Rights of the Child: Article 5: “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”

8 Consideration of the rights and the interests of the child (2 of 4) Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.”

8 Consideration of the rights and the interests of the child (3 of 4) Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

Consideration of the rights and the interests of the child (4 of 4) Goals of Child-Focused Mediation: ““create an environment that supports disputing parents in actively considering the unique needs of each of their children; facilitate a parenting agreement that preserves significant relationships and supports children’s psychological adjustment to the separation, including recovery from parental acrimony and protection from further conflict; support parents to leave the dispute resolution forum on higher rather than diminished ground with respect to their post-separation parenting; and ensure that the ongoing mediation/litigation process and the agreements or decisions reached reflect the basic psycho- developmental needs of each child, to the extent that they can be known without the involvement of the children.” (Australian Institute of Family Studies, 2007)

9 Qualifications of mediators (1 of 2) Australian legislative basis of mediator training and accreditation: FAMILY LAW (FAMILY DISPUTE RESOLUTION PRACTITIONERS) REGULATIONS REG 5 Criteria for accreditation relating to qualifications and competencies Person holding Vocational Graduate Diploma of Family Dispute Resolution (1) It is an accreditation criterion for a person that the person has, or is entitled to, the award of a Vocational Graduate Diploma of Family Dispute Resolution from a registered training organisation. Person holding certified postgraduate award (2) It is an accreditation criterion for a person that the person has, or is entitled to, a certified postgraduate award. Person holding appropriate qualifications or mediation accreditation who has been assessed as competent or completes postgraduate units

9 Qualifications of mediators (2 of 2) FAMILY LAW (FAMILY DISPUTE RESOLUTION PRACTITIONERS) REGULATIONS REG 14 Education, training and professional development (1) A person who is accredited as a family dispute resolution practitioner must undertake at least 24 hours education, training or professional development in family dispute resolution in each 24 month period starting on the day of the person's accreditation as a family dispute resolution practitioner. (2) If the Secretary becomes aware that an accredited family dispute practitioner has failed to comply with subregulation (1), the Secretary may, by written notice, give the person a specified period within which to comply with the requirement.

10 Cultural awareness and sensitivity of mediators Armstrong (2013, p.54) suggests that culturally aware and sensitive mediation practice encompasses “an appreciation of cultural complexity, an awareness of the influence of (mediators’) own cultural frameworks, an attitude of humility, and a disposition for sensitive inquiry”

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