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Why some women walk away from the family court

On the surface, their two-decade marriage might have looked a success: a large home, prestigious cars in the driveway and a gaggle of children growing fast.

But when Sarah’s* husband returned home each day from his high-paid job in Melbourne’s business district, she bore the brunt of his frustration and violence.

He urinated on her, cut her hair, assaulted her and forced her to sleep on couch cushions on the floor rather have her “dumb, dirty, stupid” presence in their bed.

When Sarah eventually fled – not a dollar to her name – and took out a restraining order, her wealthy husband warned she was “never going to get a cent”.

It is at this stage that Sarah could have considered Mediation as a mechanism to bring her husband to the negotiating table, mediation today can be conducted in a safe-space, where the parties can be in separate rooms in case of fear of violence and intimidation.  There are also online facilities available where it can be conducted from the safety of your own home.

Many disadvantaged women simply walk away from their entitlement to a fair division of property when relationships end because of a lack of quick, affordable ways to resolve family law disputes, according to new research from the Women’s Legal Service Victoria, launched on the eve of International Women’s Day.

A quick affordable method to resolve this could have been Mediation, had Sarah known of the options available to her, even if the matter had already gone to compulsory family mediation and a 60i certificate had been issued, there was nothing preventing Sarah from taking control of her life and invoking private mediation, this time with a qualified Mediator of her choice, the mediation would still be unbiased and facilitated in a neutral capacity but at least Sarah could feel comfortable with the person doing the mediation.

Dividing assets, like superannuation for example, through the family law system is far too complex for someone with no legal training, the service’s lawyers say.

Researchers interviewed about 50 clients who had small amounts of property to divide up after separation, with the average size of settlements about $71,000.

But these relatively modest sums could make a crucial difference to the lives of these women, who were often battling financial hardship.

They told heartbreaking stories of being admitted to hospital from court-related stress, or spending a year in a court battle, having to interpret legal documents with a dictionary in one hand.

Even before matters reached court, two-thirds of women had their claims delayed because their ex-partners were unwilling to make a full and frank disclosures of their financial position.

This meant they had to begin onerous court proceedings, rather than settle matters through negotiation,  however once more, appropriate dispute resolution through Mediation may have helped achieve a faster result.  Even if there had been a failed attempt at mediation in the early stages of the break up when things were highly emotionally charged,  as time passes, the opportunity to revisit mediation for resolution should not be overlooked.

The relevant laws are incredibly complicated and hard to interpret, and accessing any rightful ownership is a many-step process, said Helen Matthews, the director of policy at the legal service.

“At the moment it’s one-size-fits-all approach, no cheap or efficient way of dealing with smaller matters in the current system,” Ms Matthews saaid.

The majority of women interviewed – almost 90 per cent – had experienced family violence, including economic abuse, and all said the delays they experienced in resolving disputes only exacerbated their financial difficulties.

Once more, had Sarah been informed of the low cost solutions available with Mediation and the speed at which it could resolve things so she could get on with her life, things may have been very different.

Sarah’s only option when she left her husband was to sleep in a donated tent at the local showgrounds. Their children remained in the family home – he had never been violent towards them and Sarah felt they would be safe.

For three months she lived on cornflakes and canned food until she was placed in community housing.

Through her eight-year family court matter, Sarah had to constantly subpoena her partner – at more than $100 a pop – who did not want to disclose his financial situation. She was eventually awarded a $100,000 settlement.

Sarah continues to be terrified of her ex-husband, and said when she saw him at the court hearing she almost wet herself with fear. Negotiation through a third party would reduce this trauma for women in her position, she says.   The best qualified third party in such a situation is an appropriately qualified Mediator who has been accredited through the National Mediation Accreditation System and is registered with the Mediator Standards Board of Australia.

Family violence is only rarely taken into account in determining property settlements, researchers found, despite the fact that economic abuse often leaves women with limited resources.

Mediation however can also help manage high conflict cases such as Sarah’s through use of Restorative Justice and Shuttle Mediation processes along with online services that are available now where you can participate in the mediation from the safety of your own home.

There should be a streamlined system for small property matters, and strengthened obligations for financial disclosure, researchers say.

Sarah, who found the Victorian Women’s Legal Service by searching the terms “women and help” on a computer in the local library, says the free legal advice and support saved her life.

“I was suicidal and could see no future for myself. I’m so appreciative of them.”

*Names have been changed for safety reasons, article original source from the Age.

For further information on if Mediation can help you, please complete the contact form below for a free initial consultation.

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Mediation service that separates warring couples experiences record demand

A mediation service that resolves family law disputes without going to court or requiring separated partners to see each other is experiencing record demand in South Australia.

The service includes a so-called “shuttle mediation” program, which uses a purpose-built facility in Adelaide that keeps the warring parties physically separated while their lawyers convey their concerns to an independent arbiter in a room that sits between them.

Here at ADROnline we have the ability to utilize a similar shuttle mediation program during the induction process to narrow down the disputed issues and then we use technology to deliver the Mediation service online.

Figures in the Legal Services Commission of South Australia’s annual report revealed demand for the service had increased by 22 per cent in the past year, and its success rate had climbed to 79 per cent.

Commission director Gabrielle Canny said the ability to keep the clients physically separated throughout the mediation process was a big advantage in some cases.

“We think the combination of being able to do a traditional mediation in family dispute resolution and then this shuttle mediation has led to the success rate that we’re seeing,” Ms Canny said.
Staying for the kids

For couples with children, ending an unhappy relationship is not always black and white.

“We find that the parties that have more complex issues, for example there might be a power imbalance or there might be sensitive issues, very much people who have been exposed to the trauma of family breakdown and are not coping well, they might prefer to do a mediation through … shuttle mediation.”

Ms Canny said the ability to prevent face-to-face contact between the parties helped to reduce the emotional and distressing impact of the process.

“The individuals, the mother and the father, are not having to face the other person and perhaps emotionally jeopardise the result, but they’re able to have it logically put by the lawyer and the chairperson would work through to try to get the best result for the children.”
Families can avoid length, costly court proceedings

She said the mediation process helped resolve legal disputes such as child custody arrangements faster than the often lengthy and emotionally taxing traditional court proceedings.

“It is really a service that should continue to grow because it helps separating parents avoid court proceedings, court proceedings and family law are expensive, lengthy and deeply distressing so it’s good for families and good for our community.

“The shuttle-style approach can help many couples reach a solution relatively quickly, rather than having to wait months or years for the matter to be dealt with in court.”

Ms Canny said the service would not be suitable for everyone and each couple’s circumstances were carefully assessed before any dispute resolution process would take place.

If you would like to find out more about our online mediation services click here to contact us.

Alternatively if you would like to talk to a Qualified mediator now….

Source : ABC News

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Farm Debt Mediation Reforms: Has the farm house been spared?

The Farm Debt Mediation Scheme makes it compulsory for banks and other creditors to offer mediation to farmers before commencing debt recovery proceedings on farm mortgages.

A farmer has 21 days to respond to an offer to mediate, otherwise the creditor can commence action as normal.

Farm debt mediation is a structured negotiation process where a neutral and independent mediator assists the farmer and the creditor to try to reach agreement about current and future debt arrangements.

The mediator’s role is to facilitate the discussion and they will not provide advice on the matters in dispute.

Mediation is a simple, voluntary and confidential process that is quick, accessible and affordable.

The scheme is administered by the Department of Economic Development, Jobs, Transport and Resources (DEDJTR) and further information can be sought from the Farm Debt Mediation Officer on 136 186. Mediations will be provided through the Victorian Small Business Commission.

This scheme applies only to:

  • farm mortgages covering a farm (or part of a farm), farm machinery or a water share (within the meaning of the Water Act 1989).
  • farmers, defined as: ‘a person (whether an individual person or a corporation) who is solely or principally engaged in a farming operation’. This includes people who own land cultivated under a share-farming agreement, or the personal representatives of a deceased farmer.
  • Guarantors to a farm mortgage need to be fully informed and involved in the process.

It is recommended that farmers seek assistance from their local Rural Financial Counsellor, Solicitor, Accountant or some other appropriately qualified person. These people can assist farmers to prepare for mediation, attend the mediation session with farmers, and help with any actions that need to be undertaken after the mediation session.

In Victoria the FARM DEBT MEDIATION ACT 2011 – SECT 1 Purpose states:

“purpose of this Act is to provide for the efficient and equitable resolution of farm debt disputes by requiring a creditor to provide a farmer with the option to mediate before taking possession of property or other enforcement action under a farm mortgage.”

In Queensland the new regime provides mortgagees must:

  • offer to the mortgagor farmer the option of pursuing mediation before commencing any enforcement action.(including by way of taking possession, exercising power of sale or giving a statutory enforcement notice);
  • take part in the mediation in good faith if the mortgagor farmer opts to pursue mediation; and
  • not enforce the mortgage in contravention of the Act.

In NSW after 23 years there is a review by the NSW Rural Assistance Authority’s (RAA’s) in their Strategic Plan 2015-2019 of the Farm Debt Mediation Act 1994 (NSW) (FDMA).

The review is part of the RRA’s initiative in partnership with the Australian Government to nationalise farm debt mediation, whilst driving economic growth within the industry and community.

The FDMA allows debtors in default of a farm mortgage to engage in facilitated mediation with creditors before the creditor takes enforcement action to recover the debt, allowing for the ‘efficient and equitable resolution of farm disputes.’(Section 3 FDMA)

What is Under Review?

The proposed changes impose strict obligations upon farmers to comply with the FDMA’s prescribed operation, yet eliminates some burdensome procedural requirements.

The proposed main changes are to:

  • expand the definition of “farmers” to include guarantors with an interest in an affected farm mortgage to be notified of and possibly attend mediation proceedings;
  • change the definition of “farm” so that it may be expanded to protect a broader range of farmers under the Australian New Zealand Standard Industrial Classification 2006 (ANZSIC), which excludes fishing, hunting and trapping from the FMDA.
  • The Review also proposes new guidelines requiring farmers to demonstrate they are principally involved in primary production.
  • exclusion of machinery such as motorbikes, quadbikes cars and trucks may no longer form the subject of debt mediation, as the law doesn’t currently exclude machinery that serves multiple purposes.

Other important changes include the proposed elimination of the requirement to establish a mediation claim in multiple jurisdictions, as well as the introduction of “show cause” notices and periods when answering to allegations made by creditors and lodging exemption periods. The law may also be amended so as to not apply to farm mortgages that are secured by a guarantor that is subject to a bankruptcy petition. It has also been suggested that the FDMA be clarified to ensure that subsequent mediations are not needed for a farmer’s default under agreements giving effect to the mediation, such as a contract or mortgage document.

The FDMA may also specify the methods in which a mediator is to be chosen to be prescribed by regulation, and may require the provisions of mortgage documents and correspondence to either the mediator or creditors during proceedings.

What does this mean for farmers?
The ability of guarantors to be notified and participate in mediation may relieve the burden upon farmers to claim protection of the FDMA by establishing the Act applies.

Farmers may be limited to which farm debts can be mediated, with certain machinery excluded.

The farmer may have new thresholds and requirements to establish they are a primary producer or involved in Agriculture, Aquiculture or Forestry and Logging as part of the ANZSIC Code.

Under the proposed changes, If the subject of the farm debt covers land in multiple states, farmers may no longer be required to submit claims in multiple jurisdictions.

Farm mortgages that are solely secured by a guarantor who is subject to a bankruptcy petition is unable to gain protection under the FDMA.

Farmers may no longer have the responsibility of nominating a mediator to which the creditor must agree.

What does this mean for practitioners?

Lawyers need to encourage their clients to respond promptly in proceedings as the right of famers to respond to allegations made by the creditor under s 11 within 28 days may become a legal requirement.

Lawyers may need to assist their client in effectively showing cause in order to submit an exemption period, which stays proceedings for 6 months.

Lawyers also need to be aware if their client defaults on agreements that give effect to the mediation under the proposed changes, that a subsequent mediation may not be required.

Accurate records of all correspondence and relevant mortgage documents should be kept as they be required by the mediator and/or creditor during proceedings.

Despite the changes which may appear to limit the ability of farmers to mediate their debt, mediation is overall a relatively inexpensive and efficient process. Between 12 February 1995 and 30 December 2016, the RAA reported that out of the 1659 ‘satisfactory mediations’ that have been undertaken under the FDMA, 1487 mediations resulted in parties reaching an agreement. This is an agreement rate of 90%.

Ultimately it is worth being aware of proposed changes to ensure that farmers are aware of their rights and obligations in mediating their debts, resulting in efficient and quick resolutions.

So when it comes to Farm Debt and Mediation, it makes sense to talk to an accredited mediator under the National Mediation Accreditation System,  someone who is registered with the Mediator Standards Board and has professional training on how to help manage and mediate such disputes if you find yourself in such a situation, you have 21 days to act.

Sources:
Danny Jovica : Mediator Accredited under NMAS/MSB/AMA.

Barraket Stanton

Copper Grace Ward

Agriculture Victoria