FAMILY DISPUTE RESOLUTION

Everyone applying to a Family Law court for a parenting order must attend, or attempt to participate in, family dispute resolution — unless their situation fits one of the exceptions set out in the Family Law Act 1975.

Dispute resolution is about people coming together to talk about their differences and trying to agree. This can happen with all the people involved talking in the same room, or it may be able to happen separately if people do not wish to see each other. Where children are involved, the aim of family dispute resolution is to reach an agreement about what is in the best interests of the children.

An agreement reached through family dispute resolution can be made legally binding with a parenting plan or by consent orders.

Is family dispute resolution right for every situation?

Family dispute resolution may not be right for every situation. Examples of instances in which family dispute resolution is not recommended are:

where there is family violence or child abuse, or a risk that these will happen
where one person cannot make decisions on an equal basis with the other because they feel intimidated or unsafe
in urgent situations, for example, if children have not been returned from a visit, or if one party thinks that the other might take or damage property that they are entitled to
where one person refuses to participate
where the ability of one of the parties to participate is affected by a mental illness or a drug or alcohol abuse problem

Family dispute resolution — is it compulsory?

From 1 July 2007, an application for a parenting order must include a certificate issued by a family dispute resolution practitioner. The certificate will say one or other of the following:

that the applicant did not attend family dispute resolution but that their failure to do so was due to the refusal or failure of the other party to attend
that the applicant did not attend family dispute resolution because, in the opinion of the practitioner, it would not be appropriate for them to do so
that the applicant attended family dispute resolution and all attendees made a genuine effort to resolve the issues in dispute, or
that the applicant attended family dispute resolution but that either they or the other party did not make a genuine effort to participate

A certificate from a family dispute resolution practitioner is not required where:

any of the people involved applied before 1 July 2007 for a parenting order for that particular child or children
the applicant is seeking a consent order (an order where both people have made an agreement)
the application is in response to an application made by another person
the situation is urgent, for example a child has not been returned or is missing
one or more of the people involved cannot go to family dispute resolution because of ‘incapacity’ (which includes a person being unwell or living with a disability) or they live too far away from a family dispute resolution service
there are reasonable grounds to believe that there has been (or there is a risk of) abuse of the child or family violence
a court order made in the previous 12 months has been broken and the court finds that the person who broke it has shown a serious disregard for their obligations under the order

If you cannot make decisions equally with your ex-partner because you feel intimidated or unsafe, or there has been family violence you should tell the family dispute resolution practitioner immediately.

The court must still look at making an order that the persons involved go to family dispute resolution even if a person can prove one of the above exceptions applies to them.

Is family dispute resolution confidential?

What is said during family dispute resolution sessions is normally confidential and not admissible in court. However, a family dispute resolution practitioner may (but does not have to) give information to the court if they believe that to do so:

is necessary to protect a child from harm (both physical and psychological)
is necessary to protect someone’s life or health or property
may prevent a crime involving violence or threats of violence or report a crime involving threats or violence
will assist a lawyer independently representing a child’s interests.

Who can provide a Family Dispute Resolution certificate?

Only registered Family Dispute Resolution Practitioners can provide certificates establishing whether or not dispute resolution has been attempted. Whilst there are many services that can provide family dispute resolution such as mediation and counselling, not all are registered practitioners. The main agencies which provide these services such as the Family Relationships Centres, Relationships Australia and Centacare are registered. There is a register available online at http://fdrregister.familyrelationships.gov.au/Search.aspx that provides a list of all registered family dispute resolution practitioners.