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Care and protection section 86 contact mediations

Information for children's legal representatives

What is a Care & Protection Contact Mediation?

Contact Mediations occur under s86 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act'). They provide an Alternative Dispute Resolution mechanism for contact disputes that arise after final orders have been made. 

Contact Mediations can be initiated by any person who was a party to the proceedings, or who is a significant person in a child or young person's life. Children's Legal Representatives may initiate the process if they are dissatisfied with post final order contact arrangements.

Contact Mediations may be available if a contact dispute arises during a proceeding.

The Legal Aid NSW Family Dispute Resolution Unit can be contacted to discuss the suitability of a Mediation.

Who attends at a Care & Protection Mediation?

The Mediations are facilitated by qualified Mediators specially engaged by Legal Aid NSW. If appropriate, co-mediations with two Mediators will be arranged.

Parties to the Mediation are likely to be: 

  • The applicant for the Mediation (could be any former party to the proceedings, the NGO with case management, carers or other significant persons).
  • FACS Case Workers and/or Case Work Manager.
  • NGO Case Workers and/or Case Work Manager.
  • Parents.
  • Children's Legal Representative(s).
  • Carer(s).
  • Any other person who may be affected by the proposed change in contact arrangements. 

Other possible attendees at the Mediation could be: 

  • Any support persons for the parties.
  • An interpreter.
  • Lawyers representing one or more of the participants – parties will only be represented in the Mediation if they privately engage a lawyer, or they meet LANSW merit test1 - specifically if they can demonstrate a significant disadvantage.
  • The child or children.

All persons present at the Mediation regardless of their role are bound by the confidentiality of the Mediation and will be required to sign a Confidentiality Agreement. 

The Mediation Process

The Mediation has three stages:

1. Intake:

A Mediation Organiser will assess if it is safe and suitable for a Mediation to take place. The Mediation Organiser is the person who arranges the Mediation, they are not the Mediator.

At this stage the Mediation Organiser will contact the parties or their legal representatives to find out information about:

  • The child or young person;
  • The issue in dispute and the various proposals for change;
  • Who might need to participate in the Mediation – and if all those people agree to do so;
  • Dates and times when everyone might be able to participate in the Mediation; and
  • If everyone feels safe to attend a Mediation.

If the Mediation is suitable to go ahead the following will happen:

  • A Mediator will be appointed;
  • A Children's Legal Representative will be arranged who will represent the child or young person;
  • All parties will sign a Confidentiality Agreement; and
  • Dates for the Preliminary Sessions and Joint Mediation will be negotiated.

2. Preliminary Sessions:

This is the first stage of the Mediation and involves individual sessions between the Mediator and the parties by phone. These sessions are confidential.

At this stage the Mediator might:

  • Call each party and find out what things they would like to discuss at the Joint Mediation – if legally represented, their legal representative can participate in these sessions.
  • Speak with the Children's Legal Representative who is representing the child or young person and if considered appropriate by the Children's Legal Representative and the Mediator, speak with the child or young person with their legal representative present. 

After this Preliminary Session the Mediator might decide that the Mediation should not go ahead. They might also decide that there is a need for a delay to allow one or more of the parties to arrange legal representation. They might decide that there is a need for some more information before the Mediation can go ahead. 

After this stage arrangements will be made for the Joint Mediation.

3. Joint Mediation:

At this stage all the parties will get together to discuss the issues and to try and reach an agreement. The Mediator will facilitate the discussion and may conduct individual sessions with parties during Mediation.

Children will only attend at this session if it is considered appropriate by the Mediator and the Children’s Legal Representative.

Any agreement reached by the parties will be typed up into a document with the assistance of the legal representatives present at the Joint Mediation and signed and dated by all parties to the Joint Mediation.

If the agreement is reached by parties pursuant to section 86 of the Act, each party will be provided with a copy of the agreement for their records and unless proceedings are subsequently commenced to formalise the agreement into Orders, this document will not be filed in the Children's Court. The agreement may however, be used later as evidence of agreed contact arrangements in any subsequent Children's Court proceedings.

If the agreement reached at the Mediation varies an existing Contact Order, then it must be registered in the Children's Court pursuant to section 86A of the Act.

How is the Children's Legal Representative appointed?

The Children's Legal Representative is appointed by a delegated Legal Aid staff member. The Children's Legal Representative is appointed in accordance with Legal Aid Policy

Legal Aid will appoint an in house Children's Legal Representative, unless it is not appropriate for an in house lawyer to be used. Only one Children's Legal Representative will be appointed for all children the subject of the Mediation, regardless of the children's ages. Legal Aid NSW will only appoint a second Children's Legal Representative to separately represent the children’s interests if the appointed lawyer advises that they do not consider it possible to equally and fairly represent the interests of all children involved in the dispute.

For any Mediation relating to a dispute arising out of Contact Orders which have been in place for less than 12 months, the Court appointed Children's Representative(s) will be asked to act as the Children's Legal Representative in the Mediation, in accordance with the requirements of s86A (2) (b) of the Act.

Grants Information:

Children's Legal Representatives are asked to seek a grant for s86 Contact Mediation: Children's Representative (PP44) and the associated Mediator disbursement grant s86 Contact Mediation: Chairperson (PP46)

Children's lawyer fee scale is as follows:

  • 4 hours Mediation attendance;
  • $300.00 Child Visit (up to 3 further additional child visits at $150.00 per visit)
  • $375 preparation.

What is the Children's Legal Representatives role?

The Children's Legal Representatives role is to ensure the views of and/or the best interests of the children is represented at the Mediation.

All children will be represented by one legal representative at a Mediation, except when the Children's Legal Representative does not consider it possible to equally and fairly represent the interests of all children the subject of the dispute.

The Children's Legal Representatives is to ensure that the best interests of all children are represented regardless of their age but to give added weight and force to the views of older children taking into account their understanding and capacity.

Children old enough to express an informed view and benefit from involvement in the Mediation process, are able to attend the Mediation but are not required to attend. The Mediator may exercise his or her discretion to have a child or young person attend for some of the Joint Mediation but not necessarily all aspects of the process.

The Children's Legal Representative's role includes:

  • Reading all documentation and make all necessary enquiries to properly represent the interests of the child or young person/s at the Mediation.
  • Meet with the child or young person/s to explain their role, the Mediation process and the various proposals;
  • Where appropriate, obtain the views of the child or young person/s;
  • Meet with the child or young person/s after the Mediation to advise of the outcome;
  • Advising the Mediator if a child or young person chooses to attend;
  • Meet with the Mediator for a Preliminary Session (usually by phone) to discuss the issues in dispute and to express the views of the child or young person/s, where it is age or otherwise appropriate;
  • If a child or young person chooses to attend, facilitating the Preliminary Session between the child or young person and the Mediator and facilitating their attendance at the Joint Mediation in consultation with the Mediator;
  • In circumstances in which an application for contact has been filed but the matter has been adjourned to allow for Mediation to take place, assist parties to manage Court events.
  • Where appropriate, provide general information (but not legal advice) at the Joint Mediation about relevant legal issues for example confidentiality and whether a contact agreement can be registered under s86A;
  • Assisting where appropriate an unrepresented party to state their position but not to advocate on the party's behalf;
  • Assisting the Mediator to reality test proposals put forward by the parties and to consider other options;
  • Assisting to draft any agreement reached;

How Does the Children's Legal Representative Obtain documents / information?

If the Children's Legal Representative has previously acted in the matter, they are asked to obtain their file from the proceedings to assist them in the matter.

Legal Aid NSW has entered into an agreement with FACS to allow for the provision of information – including Care Plans, Orders, any relevant report, etc. – to be provided to the Mediation Organiser. The Children's Legal Representative is asked to liaise with the Mediation Organiser about obtaining copies of these documents.

Upon being appointed, the Children's Legal Representative is welcome to liaise with the FACS or NGO Case Worker(s) regarding being provided with any other relevant information, for example, contact reports or case reviews.

[1] http://www.legalaid.nsw.gov.au/for-lawyers/policyonline/policies/5.-family-law-matters-when-legal-aid-is-available/5.16.-care-and-protection-matters