Children and Young Persons (Care and Protection) Amendment Bill 2018

Children and Young Persons (Care and Protection) Amendment Bill 2018

What the bill means

The bill was passed by NSW parliament to amend the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act 2000. The main reason for the amendments were to make further provisions in relation to the care and protection of children and young people and for the provision of services to them. The amendment came into effect on the 4th February 2019.

What the amendments mean to dispute resolution practitioners

The important provisions are to clarify and require alternative dispute resolution rather than heavy handed legal action in cases that are not urgently high risk.

The objectives of the act and the role of the department have been clarified in section 16. 

A new subsection 2 in Section 17 authorises the prioritisation of requests for services for children and young people at risk of significant harm by government departments, agencies and non-government agencies in receipt of government funding. 

 

Section 16 – The General Role of the Secretary

(3) (a) to promote the development of co-ordinated strategies for the care and protection of children and young persons and for the provision of support services directed towards strengthening and supporting families (including the provision of prioritised access to support services to children and young persons at risk of significant harm and to their families), and

(b) to co-ordinate the provision of services for assisting young persons leaving statutory out-of-home care, and

New (c) to co-ordinate the early provision of alternative dispute resolution processes for children and young persons at risk of significant harm and their families who wish to participate in those processes.

Note. Section 37 (1A) requires the Secretary, on determining that a child or young person is at risk of significant harm, to offer these processes to the family of the child or young person (subject to certain exceptions) before seeking care orders.

 

Section 22 –  Secretary‘s response to requests for assistance

 The following text has been added.

If the Secretary determines that a child or young person is at risk of significant harm, the Secretary must offer alternative dispute resolution processes to the family of the child or young person (subject to certain exceptions) before seeking care orders.

This recognition and encouragement to attempt to involve the family in working out a plan for the care of their at risk child is a very positive step in the right direction.

The second addition to this section is

The Secretary may request government departments or agencies, or non-government agencies in receipt of government funding, to provide prioritised access to services to children or young persons who are at risk of significant harm and to their families.

 

The focus on Alternative dispute resolution is further reinforced in section 37 by changing the language from “is to consider” to “must consider”

Section 37 Alternative Dispute Resolution by the Secretary

 

(1) In responding to a report, the Secretary must consider the appropriateness of using alternative dispute resolution processes that are designed:

(a) to ensure intervention so as to resolve problems at an early stage, and

(b) to reduce the likelihood that a care application will need to be made under Chapter 5, and

(c) to reduce the incidence of breakdown in adolescent-parent relationships, and

(d) if an application for a care order under Chapter 5 is made, to work towards the making of consent orders that are in the best interests of the child or young person concerned.

Also insert the following

(1A) If the Secretary determines that a child or young person is at risk of significant harm, the Secretary must offer alternative dispute resolution processes to the family of the child or young person before seeking care orders from the Children‘s Court.

(1B) Subsection (1A) does not apply in relation to the family of a child or young person if the Secretary forms the opinion on reasonable grounds that their participation in alternative dispute resolution processes would not be appropriate due to exceptional circumstances.

(1C) If the Secretary becomes aware of criminal proceedings or a police investigation that may be compromised if alternative dispute resolution processes are offered under subsection (1A), the Secretary:

(a) must seek the advice of the Commissioner of Police as to the likely effect of the processes, and

(b) is not required to offer the processes if the Secretary determines that it is not appropriate to do so after taking the advice into account.

(1D) Subsection (1A) does not affect the Secretary‘s obligation under section 34 (1) and is subject to sections 35 (1) and 36.

(2) Participation in any such alternative dispute resolution is voluntary.

Note : Within this provision, models for conferencing may be developed to accommodate the unique requirements of a community (whether cultural, geographic or language), the complexities of the case, or the nature and severity of the abuse suffered by the child or young person.

 

 

What does it all mean?

The government in NSW is directing the department to make every effort to engage the family via family dispute resolution as long as there is not extreme levels of urgency or risk to the children in question.

That is going to be very good for Family Group Conference Facilitators and families as well facilitated Family Group Conferencing is a very child inclusive and empowering process.

Find out more about Family Group Conference Facilitation Training

Membership Support

Mediation Institute now offers membership based support for Family Group Conference Facilitators including complaint handling, access to low cost insurance and professional development.

Professional development includes our Practice Development Mastermind Group, Group Supervision and access to online tutorials with our Family Group Conference Facilitator Training.

Property FDR

Property FDR

What is Property FDR?

We are using the term property FDR to refer to negotiations to reach a property settlement heads of agreement as well as financial negotiations about issues to do with money which occurs in Family Dispute Resolution Mediation.

The major role of the Family Dispute Resolution Practitioner is to make sure that there is procedural fairness and informed consent in terms of the financial negotiations.

Often there is one party with greater financial understanding so we have to work to make everything very clear. 

As accredited Family Dispute Resolution Practitioners the mediator can’t abdicate their responsibilities when facilitating property mediation and must make sure that they are competent, understand the major concepts, components and process to competently facilitate property FDR.

The mediator is not in a role where they should be providing legal advice which includes telling clients what a judge would do. While this might be tempting for experienced practitioners especially those who are legally qualified and experienced it is an ethical minefield.

The role of the FDR facilitatiting Property FDR is to help the clients to understand their situation (property pool), their options and the issues that are relevant in their case in terms of considerations and future needs.  The considerations and future needs are factors that are considered by the court and also may relate to factors that are unique to the specific family.

Property FDR training

We strongly believe that NMAS Accredited mediators should not be offering to facilitate property FDR.  We are hopeful that the Family Law Review will put an end to this practice or at least reduce it by requiring evidence that mediation has been attempted from a FDR Practitioner similar to section 60i Certificates.

NMAS Mediators can become competent and accredited by completing the CHC81115 – Graduate Diploma of Family Dispute Resolution. If considering this training do your due diligence and make sure that your training provider is going to provide you with appropriate training in property mediation.

Our Professional Development Options

To help upskil those who have not been adequately trained or who were trained but have not been facilitating property mediation we have available two professional development options.

One is focused on professional development only and the other includes the professional development support as well as opportunity to practice and develop skills and then be assessed for a Certificate in FDR Property Mediation.  https://www.mediationinstitute.edu.au/certificate-property-mediation/

The support package is for twelve months because we think that practitioners are going to need a lot of support to get through the changes that will result from the Family Law Review. 

What’s in Property FDR Training?

The process we teach is the modified Property FDR.

The order is reversed from parenting FDR where we don’t ask parties to do opening statements and form an agenda. After the mediators opening statements in the first session we go straight into determining the asset pool.

Property FDR Process

  1. Mediators opening statements – confirming that they are there for property and not other issues.
  2. Determining the asset pool – this requires negotiation of values and often a bit of encouragement to list everything. We have a duty to require full disclosure and not allow parties to “leave off” assets that they don’t want to distribute. Sometimes additional information or valuations are needed at this stage. You will have tasked them with bringing the information needed during the pre-mediation process but not everyone does their homework.
  3. Discuss considerations this relates to the considerations that the family court would think about “how the court decides” as well as any specific considerations that the couple may have in their specific situation
  4. Considerations of options and proposals. There are a few ways that this can be done from a positional style negotiation of percentages, a more interest based discussion of needs or something in the middle which is to find out what they agree on and document that and then negotiate the sticking points. We will teach you about the range of approaches as the approach taken depends on the client situation.
  5. Clarification and reality testing this is when we help them to work out if what they have proposed is actually able to be implemented  e.g. if someone says they will get a loan to buy the other out do they have the borrowing capacity, does the proposal fit within their legal advice recommendations etc  Sometimes people want to get more legal advice at this stage, get financial advice about capital gains or other tax implications or speak with their bank about borrowing. Ideally this has been done before the mediation but the reality is that sometimes proposals don’t get considered before the mediation day.
  6. Documenting points of agreement and action steps. This is where you document who is doing what and when. Unlike parenting where a Parenting Plan is usually sufficient or even recommended with property they usually need to have either a Consent Order or Binding Financial Agreement written up. Certainly if there are going to be title transfers, debt issues or superannuation transfers. That means in most cases a lawyer is going to be reviewing what you provide.

Lawyers are often VERY critical of the whiteboard print out that most Relationships Australia or Family Relationship Centre mediators produce as the documentation from their mediations. That is because simply printing off a table doesn’t give any of the who, what and when information that is critical to write up orders. In fact there has not been any discussion about these things as the mediator has little understanding of what is required for the next step in the process. Unless these issues are raised and discussed by the parties there is a high risk that the agreement will fall apart when it gets to the lawyer resulting in the need for a lot of expensive lawyer negotiation or even a period of wasted time and money in the family court.

Financial Matters

The other aspect we cover in our training is financial issues such as spousal support, touch on child support (although we recommend that the child support agency is used as they have extensive powers in terms of collecting child support) and other issues to do with money.

The mediators job is to help them to negotiate values for their assets and liabilities and if necessary support the exchange of valuations, bank account records, super statements etc. 

Online Learning

We have an online course which goes through the whole process and we’ll also be doing a series of webinars to discuss tutorials as part of the training and support program including:

  • Introduction to Property FDR – an overview from enquiry to agreement documentation and beyond
  • Property FDR Pre-Mediation – exchange of documents, is FDR the appropriate process and homework
  • Property FDR  – the process in detail including demonstrations of different approaches from Whiteboard, through two types of excel spreadsheet and FamilyProperty software
  • Legal Supervision – Q&A session with a family lawyer / FDRP to help FDRP’s to understand the context and consequences of their work
  • The Family Law Review – what is being proposed and how will it impact FDRP’s if implemented?

There is too much content to just do it as a single webinar or for people to learn adequately by just attending webinars so we have taken the approach of duplicating the property training from our Grad. Dip. Course as a stand alone course for people who want to learn properly how to facilitate property FDR.

Options

Those who want to be certified have to demonstrate that they are competent which will include role plays (via video) unless they or their organisation want to organise for a trainer to travel to their location.

FamilyProperty

FamilyProperty Software

The course makes use of a variety of approaches in terms of tools and technology for property mediation from the simple whiteboard to the Australian Developed Family Property app.

https://familyproperty.com.au/

Upcoming Events
Peer Supervision
Tue 26
Peer Supervision
Tue 26
Webinar - Understanding Facilitative Mediation
Mar 04

Understanding Facilitative Mediation

4 March @ 12:00 pm - 1:00 pm AEST

Maximizing Mediation: Experienced Mediator’s Favourite Techniques

This post will continue to grow to become a long resource of resources to assist mediators to maximise their skills.

Mediator Musings is a podcast being created by Mediation Institute for mediators by mediators and other relevant professionals.

It is available on https://www.spreaker.com/show/3275854 a new episode will be released each Thursday.

So make sure to follow the show to get the latest episode.

Contact us if you would like to nominate a guest for the podcast.

This is an example of the recordings of conference presentations and other content available from the Mediate.com University in the US. 

While context is different and you need to remain mindful of the Australian context, legislation if it applies to your work and other factors there is some great content.

https://www.mediate.com/University/

Russian or Chinese Hackers interested in Mediation

Overnight our LMS was visited by Russian or Chinese hackers who broke in, and locked up our learning management system. We were made aware of the breaking in early this morning and by lunchtime we were able to reinstate our site on a new server with new IP address.  We have additional new security features that should not be apparant when you use the site.

We did not pay the ransom demanded to unencrypt our site and your study material. We have reinstated our full content from a backup that was done on the 3 February and your materials from a database backup done on the 4th February 2019.

If you have done work on 4th February 2019 or early morning Melbourne time 5 February, can you check whether your latest submissions are online. If they are not please contact Joanne Law and explain what materials are missing – if you have copies of submitted material please upload them.  All is not lost if you do not have copies. We have access to the hacked site and can access some material but we need your guidance so we can look in the right place.  I cannot merge the hacked site back into the new site and maintain security.

Regrettably this is one of the troubles of running a busy on-line learning site.

Paul Kenna

Mediation Institute

Training and Membership Options

Training and Membership Options

Mediation Institute is a specialist  training provider

We train and support mediators, family dispute resolution practitioners and other dispute resolution professionals such as Family Group Conference Facilitators.

Download our Training and Membership Options Information Guide

This 27 page guide provides a comprehensive overview of our current and proposed courses and membership options.

This includes information on our history and values.

Our course options, courses to be launched in 2019 and other courses under development.

New Courses

Our values are accessibility, flexibility, quality, respect and innovation.

In order to be flexible, accessible and provide high quality learning we use technology such as eLearning and video meeting technology.

We facilitate face to face workshops from time to time, if requested or if the topic requires a simulation that can only be done in a physical workshop environment.

Upcoming Events
Peer Supervision
Tue 26
Peer Supervision
Tue 26
Webinar - Understanding Facilitative Mediation
Mar 04

Understanding Facilitative Mediation

4 March @ 12:00 pm - 1:00 pm AEST

Reflective Practice

Reflective Practice

What is Reflective Practice?

Reflective practice is a skill used by professionals to think about or reflect on their work. It is a way to learn from experience by thinking about what you did, the results that your client got and what other options you may have had to help the client to get different results.

We all think about what happened in the past from time to time and sometimes this can even be a problem if something traumatic or distressing happens to us.

There is a difference between thinking about something and reflective practice. Reflective practice requires us to consciously think about events for the purpose of developing our insight, taking the learnings and then letting go.

Once you get into the habit of using reflective practice, you will probably find it useful both at work and at home.

Reflective practice is, in its simplest form, thinking about or reflecting on what you do. It is closely linked to the concept of learning from experience, in that you think about what you did, and what happened, and decide from that what you would do differently next time.

Thinking about what has happened is part of being human. However, the difference between casual ‘thinking’ and ‘reflective practice’ is that reflective practice requires a conscious effort to think about events, and develop insights into them. Once you get into the habit of using reflective practice, you will probably find it useful both at work and at home.



Read more at: https://www.skillsyouneed.com/ps/reflective-practice.html

The Reflective Practice Skill Set

According to Moon, J. (1999), Reflection in Learning and Professional Development: Theory and Practice

“Reflective practice is an active, dynamic action-based and ethical set of skills, placed in real time and dealing with real, complex and difficult situations.”
Reflective practice allows us to explore the theories we learn in our formal training and develop based on our beliefs and values and apply them to our experiences in a structured way.  It increases self awareness by encouraging us to explore our own beliefs and assumptions, helps us to recognise unconscious bias and to find solutions for problems.
 
Neil Thompson in his book People Skills advises the following to support reflective practice.
Reflective Practice
General Information

Reflective Practice

Due to the confidential nature of dispute resolution reflective practice is an essential life skills for dispute resolution practitioners to develop.

Read More »

Reflective Practice can be a shared activity

In fact it is an activity that is better when shared. Getting the input of others is an essential part of reflective practice because if you have nothing to compare your practice to it is unlikely that you will develop new insights or innovations as easily.

Sharing ideas also requires a process of refining them in order to say them out loud. This is part of learning and remembering. We all remember brilliant ideas that we know we’ve had but forgotten!

Some learning theoreticist believe that is because ideas need to be written or spoken to be remembered. That indicates that keeping a practice journal may be a good idea for those who are working alone such as dispute resolution professionals.

Peer Supervision is an option for reflective practice hosted by Mediation Institute.

 

Upcoming Events
Peer Supervision
Tue 26
Peer Supervision
Tue 26

The Reflective Learning Journal


Step One – Identify the situation


Identify a situation you encountered in your work or personal life that you believe could have been dealt with more effectively.

Step Two – Describe the experience

What happened?  When and where did the situation occur?  Any other thoughts you have about the situation?

Step Three -Reflection

How did you behave?  What thoughts did you have?  How did it make you feel?  Were there other factors that influenced the situation?  What have you learned from the experience?

Step Four – Theorizing

How did the experience match with your preconceived ideas, i.e. was the outcome expected or unexpected?  How does it relate to any formal theories that you know?  What behaviours do you think might have changed the outcome?

Step Five – Experimentation

Is there anything you could do or say now to change the outcome?  What actions can you take to change similar reactions in the future?  What behaviours might you try out?
Reflective Practice
Positive SSL