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Hi all, while I haven't actually entered the scary legal world as yet, I know my situation is fast approaching this route.  I have a solicitor but they are on leave for most of Jan, but I have some queries which are eating away at me and can't wait.

My question revolves around Family Dispute Resolution.  My ex and I separated back in May 2009.  I left him because of his alcohol abuse. We have had 3 mediation sessions so far with a 4th scheduled for late Jan.  Each of these 3 sessions has resulted in a Parenting Plan being agreed in the session but he refuses to sign once we get them through the mail.  Also, he tries to change what we agreed within days of the mediation session eg. due to several alcoholic "incidents" since I left he agreed to supervised time with the kids at the last session, however a couple of days after the session he announces that since the school holidays were approaching he wanted some time alone with the kids and that he wasn't really serious about "all" of his time being supervised.   He also agreed to clauses regarding no drinking while with the kids, no alcohol 12 hours prior etc, plus a clause about regular attendance at AA - all of which are routinely ignored.

I feel that Dispute Resolution is not suitable for our case and I need to get this to the Family Court and have Orders applied for, so that I have some stability for the kids (and myself!).  I have tried to find some info regarding obtaining a certificate for "Not appropriate to conduct family dispute resolution", but I can't find anything with any clear and defined principles.

From the Attorney Generals website - the criteria for obtaining this type of certificate are :
a history of family violence among the people (not really an issue in my case, only a couple of minor physical episodes)
 the likely safety of the people (the kids and myself get regular emotional abuse in the form of shouting and swearing at us when he's drunk, does this count?).
 the equality of bargaining power among the people (not sure this applies in our case).
 the risk that a child may suffer abuse (one of our two children is in regular contact (a couple of times a week) with the school counsellor expressing concern at being in Dads care due to his alcohol consumption).
 the emotional, psychological and physical health of the people, and (I had to call an ambulance to him a couple of weeks ago after he claimed to have taken some pills, at that time he also claimed to have been addicted to prescription drugs too, I'm sure he'll deny that if asked by anyone else.  He also regularly tries to persuade me to come back to him, and loves that I am the supervising adult (since no-one else will do it!).
 any other matter that the family dispute resolution practitioner considers
relevant to the proposed family dispute resolution.

I called my Dispute Resolution centre after the 3rd session, expressing my desire to obtain a certificate given his continuing alcohol abuse (at each session he has claimed "I'll never drink again"), and continuing refusal to sign the Parenting Plans, but was told that I'd still have to come to the 4th booked session.  I guess what I'm asking for is advice on how to approach certificate issue with a bit more of a compelling argument.

I have many more questions regarding appropriate child visitation with parents with alcohol problems, but I guess my first hurdle is how to get this out of mediation and into the courts.  Any guidance would be much appreciated.  I hope I have given enough information feel free to ask any questions, I will try to figure out how to upgrade my membership to gain access to the more secure forums.


Thanks for reading.

A suggestion

Hi Morgay

I would suggest attending the 4 session of mediation and there insist that either an agreement is signed that is to be filed with a court as consent orders or you will refuse to participate in any further mediation.

For me - Shared Parenting is a Reality - Maybe it can be for you too!

Thanks

Many thanks for your response.  I had resigned myself to the fact that I will have to attend the 4th session, I guess it's not far away now.  Just one further quick question.  In most of our previous sessions we don't get to cover all of what needs to be agreed, usually school holiday etc we never get to.  If this occurs again can I still file consent orders based on what we have agreed or will we have to keep having sessions until all the issues are covered - which could take months.



Thanks
Hi Morgay

Please keep on posting in regards to your outcome as I am really interested as I may be heading for a similar situation. do you want the certificate to go to court?
Hi Morgay,

You say you have made agreements in the past that he has refused to sign or tried to change, may I suggest you take that last agreement with you and demand it be signed there and then or a certificate be granted by the mediator there and then.

You said there are 3 agreements not signed, have you a copy of each of these to support he has breached his promises/undertakings to you and the mediation centre? :ninja: I think you could use both the breach of promise and the unsigned documents to support he is being uncooperative hence a certificate is warranted. :thumbs:

 the likely safety of the people (the kids and myself get regular emotional abuse in the form of shouting and swearing at us when he's drunk, does this count?).

Yes this is Family Violence of emotional or psychological abuse that children should not be exposed too which in VIC is grounds for an injunction.

I had to call an ambulance to him a couple of weeks ago after he claimed to have taken some pills,

You need the name of the hospital and ambulance service used so you can subpoena their records for Professional Hears evidence that he has attempted or wrongfully claimed he has attempted to harm himself.

:ninja:  This will support an application for parental or general counselling and possibly anger management.

Good luck  
Hi Morgay,

Just sharing my own personal experience of FDR. My ex did not want to negotiate, we had agreed on "time spent with" and " lives with" issues so the only thing up for discussion was things stipulated in the orders. After talking to the mediator I came to a few conclusion's:

1.Unless both parents were willing to parent with "goodwill" it didn't matter how structured I made the orders( covering everything we had a problem with in the past ie passive smoking, seatbelt wearing etc) if the goodwill wasn't there it wasn't going to stop different  issues arising.

2.Even if I did get the orders how I wanted them to prove a contravention (of many of the orders I wanted included) would be very difficult, and take a long time to get a date to have the matter heard back in court.


SO ,to get it over with and be the bigger person who compromised, I told the mediator to go and tell my ex (he refused to sit in the same room as me so the mediator had to go back and forth between two rooms) that I agreed to have the orders how EVER he wanted them…..Guess what? he said no and got a certificate saying he had made a genuine effort to come to an agreement!!! Seriously.

I guess he just wants his day in court.

So whether someone someone actually does make an effort to mediate or not it doesn't matter as long as they attend.

It doesn't matter what you do or don't negotiate  during the process ,it is not recorded for use in court what happens in mediation is confidential  information from what I understand and you can't use it in court and say he agreed to this in mediation unless he signed off on that agreement, you can make up a whole new set of orders you want to seek in court if you so desire.

The court just wants to see the certificate to file the application, that is all the mediation is good for(unless of course an agreement is made during the mediation process.)

I found FDR a complete waste of time as you can't MAKE someone negotiate in a reasonable manner, many people use it to drag out the  court  process.

The quicker you get that certificate and file your initiating application and affidavit the better ,especially as it seems you are the only one making a genuine effort!

I started mediation in March 09 , my ex filed June 09 we got transfered from the Federal Magistrates Court to the Family Court in December 09( this means you will get the matter heard more quickly the Registrar said 6mths rather than 10 to 12mths, also from what I understand you go through a "Less Adversarial trial" but to get it transferred the court must see it is going to take longer than a few days for the final hearing and is complicated with lots of issues etc) it is now February 10 and no final court date yet!!

So keep trying to negotiate and get that signature if at all  possible, because this LONG drawn out process sux and is all consuming and emotionally draining, to put it mildly!!
Its funny isnt it? I went along to the info night last night and walked out dumbfounded. You can see the flaws in it. I just dont see how it can be taken all that seriously if people arent making a proper effort purely to be vindictive.

It seems to make a lot of presumptions to which I just think, if you were going to assume that people were going to do whats right, why would they be there? I understand that its a precursor/alternative to going to court and some people just need someone to mediate what they already know is right but I think it needs to have more weight behind it - maybe Im missing the point?

Also, for someone like me who wants to avoid court and having my child's future decided by a judge (who may get it wrong) Im wondering what to do - on one hand if Im completely honest (i.e. state that my ex has a huge drinking problem, violent, abusive, regularly mentions and has done self-harm all of which is evidenced) it sounds like my case will be deemed inappropriate for FDR but if I curb what I say then at least I have a chance of negotiating whats best for my child and for a relatively quick process.

Dont get me wrong, I understand why that is - being that they dont want to place the child knowingly into a situation of danger.. but this is where it gets tricky. Im trying to think of how best to handle this all of which is hard without knowing how things will work out and naturally progress.

In my case I will be sitting in another room to my ex because i want to be able to do this without being intimidated and I want to clear-minded and most importantly, I want to stick to what is best for my child.

Maybe im naive but why cant you have a mediation session with your lawyer present so that you can state both sides and issues at hand like children and finances etc and work it out that way? maybe its just in the movies haha

Hi reallyconfused,

If you do not get a resolution in mediation that does not mean the chance to negotiate has finished ,  -far from it. From what I have read only a small percentage of cases make it to the final court hearing. When I turned up to my initial hearing there was PLENTY of negotiation going on in the waiting rooms. I myself suddenly had my ex agreeing to doing anger management and we agreed to interim orders 15min before we walked into the court room.(make sure to put a start date or finish date of the course in the order to ensure it happens, I learnt this the hard way).

I decided to self represent which takes pressure off in one respect as it costs only a few hundred dollars(my ex has been ordered to pay costs for the final hearing)..but adds pressure in other respects as the whole experience is unknown and can be a bit intimidating. I found the Registrar I have has been  EXCELLENT, he explained things in layman's terms and had a go at my ex's lawyer when she didn't want to negotiate with me as I was not represented.

Make a decision on what is best for your kids and don't let the fear of going to court compromise what is best for them.You hold all the cards because you are the mother(unfair but I think so true)and because of your ex's history of violence etc.

I know how you feel , all I want is for my kids to have a close , healthy relationship with their dad but it is hard when you are dealing with dysfunction such as alcoholism.

You can't make him step up ,all you can do is concentrate on what is in your children's best interests and VERY sadly sometimes this is limited time with one parent.

I say be truthful about the violence etc and don't shield him from the consequences of his actions.You are not doing him or your children a favour by doing this. I did the same thing for 2 years, gave him chance after chance,down played the seriousness of his detrimental behaviour,let him off in general time after time after time.GUESS WHAT? It didn't change his behaviour , it only escalated.

I have just recently filed a ' form 4'  for the family violence the kids have been witnessing ,it was something I SO did not want to do but the last straw was when the Family consultant who did a "Parents and Children's issues assessment" said to me regarding  the violence "did you know this was going on?" I replyed "yes" and she said "then why are you still sending them there?". That made me feel bad. My desire to have the kids see their dad was blinding me to the damage that was being done.

I hate women who use children as weapons and stop contact with father's and I never wanted to be one of them. That is why when people like justin and others  jump down your throat and judge your situation as 'another mother making up stories to take kids off their dad's' is so offensive and unfair. I dislike these women as much as  they do but I and many women are forced to take action against every belief they stand for. You sound like one of these women to me.

You can do this, just take one step at a time,GOODLUCK
Folks, just an update on my situation since there was a bit of interest.  Well, I had to endure a 5th mediation session at the end of May with more unsigned parenting plans and more drunken incidents inbetween.  I still had to follow up with a phone call 2 weeks after the session to remind them to issue the certificate.  Slightly annoyingly they have ticked section - "all attendees made a genuine effort to resolve".  Still, I have my certificate, so I'm off to see my solicitor this week to finally get some real orders in place.

One question:

Is it normal for the ex-spouse to supervise visitation with an alcoholic/addict.  I think this is preferable for the kids rather than a contact centre, but having read dozens of judgements over the last 12 months I have yet to find an order with this situation.

Thanks

Morgay
Hi Morgay,

Whereas its sounds ok in theory - you'd probably have to ask yourself if it would expose the kids to verbal arguements.
I know in my own personal case, I had that thought of supervising my alcoholic ex but in the end, I decided against it because its becoming apparent that he wants to see me and if the emails and SMSs are anything to go by, he'd have no issues "having a go" and thats something I dont want my child to see.
Do you perhaps have family members, close friends that the kids feel comfortable and safe with that can help?
Thanks.

Unfortunately, he has burned his bridges with most of our friends and family and the only person left is his brother.  Their relationship is hanging by a thread so I don't see his co-operation lasting long.  You are right regarding the potential conflict arising when we get together, there is usually some tension and he still hopes for reconciliation so I know I need to distance myself from him, it's just the thought of the kids only being able to see their Dad in a contact centre which saddens me a bit.

Thanks again

Morgay
I know that all too well! Its fustrating and far from a perfect solution for the kids and by the sounds of things, if it isnt in a Contact Centre - they really wouldnt be receiving the "benefit" of any contact with their Dad.

In my case, my child just cried the whole time and it was distressing for everyone involved. That was outside a Contact Centre.

I havent done the Contact Centre thing yet and I would be loathed to because I can only imagine how my little one would take it but if thats the only mechanism in which to facilitate visits, theres no real choice in it.

I'm thinking that its only a matter of time before he gets the idea of reconciliation out of his mind. Personally, I dont respond to anything emotionally-based with my ex because I'm pretty clear on the fact that I'm way past that. I just keep it business-like. It doesnt seem to work at his end, but at least I know I'm doing the right thing. As far as he goes, the thing will Alcoholics is that if you give and inch, they take a mile so try not to be enabling in terms of his rants. He wants a response and he wants a rise and in turn, it fuels a bad situtation.

Another question: I know you want to find a medium to supervise to facilitate visits, and since it doesnt look likely that you will find someone who's willing to to supervise - wouldnt be up to him to book into the Contact Centre anyway?



I believe that we would both have to apply to a contact centre, I think you have to attend intake interviews much like mediation.

I have my appointment with my solicitor tomorrow and my head is spinning with possible visitation schedules, I don't like having the 'power' to decide how much time they have with their Dad.  Unfortunately he's left me with no choice but supervised given his alcohol problem.  A couple of hours at a contact centre seems hard to justify given that we live so close and I want the kids to spend more time with him, however this means I give up my time to supervise, and while I feel like I can do it I know I shouldn't.

Morgay
Contact centres have long waiting lists for supervised and 2 hours is the maximum visit per week.

Handover is also available and children do not stay at centre. Visits are longer, and centre staff can screen for drunkenness.

Both are supposed to apply, but the livewith parent can force supervised by only allowing supervised. The courts are reluctant to go unsupervised when supervision is requested until later in the proceedings.
Wow Morgay your situation is very difficult. hugs to you and your children. Sounds like you are doing a really great job trying to be the better person and do what is best for the kids.

And I understand COMPLETELY your feelings of not liking being 'in control' of the contact they have with their father. But in this case he really has made his bed to lay in. HE is the one that continues to drink, and HE is the one that doesn't seem to want to be reasonable and sit down and work out a proper plan and stick to it.

The saddest part is that the children miss out on their fathers time, but in focusing on the childrens best interests, hanging out with a drunken dad is DEFINITELY not something they should have to do. You already said your child is in counselling over it all. That is not what anyone wants for a child to have to do. Trust me the kids will thank you for it in the long run. One steady and stable parent who can be mature and rational about things is much better than none.

Keep your chin up, and try not to feel guilty. you are doing the right thing :D
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