Most separating parents are able to decide between themselves where the children will live and other parenting issues without taking the matter to court. While this can be a difficult and emotionally draining experience, solutions reached in this way usually suit everybody better than a decision imposed by a court. Court battles over children are often very bitter, drawn out and expensive. Parents are also often better able than a court to work out what arrangements suit their children.
A Family Law Court decision that appears to leave one side the winner and the other the loser also increases the bitterness between the parties. This can be avoided if the parents are able to agree, without the intervention of the Court, about the most satisfactory living and other arrangements for the children.
In any event, everyone applying to the Family Law Courts 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 (Cth).
An application to the Family Law Courts for a parenting order must include a certificate issued by a family dispute resolution practitioner [s 60I(7)]. 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
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.
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.
Consent orders enable the parenting plan to become legally binding.
For a list of family dispute resolution services in South Australia, see the Family Dispute Resolution Provider Register maintained by the Commonwealth Attorney-General's Department.
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. See the online Family Dispute Resolution Provider Register.
What happens if we agree about the children?
Where an agreement has been reached there is no need for a family law court to ratify the decision and no formal orders are required. Agreements can be verbal, but parents are encouraged to prepare parenting plans to help avoid disputes. Parenting plans are written agreements between parents regarding arrangements for a child and assistance with these can be provided by a Family Relationship Centre or other accredited family dispute resolution service.
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
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.
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.
Family dispute resolution and legal aid
If you apply for legal aid, you may be referred to Family Conferencing, a form of dispute resolution provided by the Legal Services Commission. At least one party must be eligible for legal aid to participate in a family conference. Usually, both parents and their lawyers are present. Agreements made may then be made into legal orders.
For more information see our pamphlet on Family Law Conferencing.
If you are not eligible for legal aid, you can go to a Family Relationship Centre or other family dispute resolution provider.
Are parenting plans legally binding?
Without being filed in a family law court as consent orders, parenting plans have no legal force. After reaching an agreement some people prefer to apply to the court for a binding order. This can be done by preparing a consent order. The Family Court has a Consent Order Kit but you should get independent legal advice first.
We had a parenting plan but can no longer agree — can we still apply to the court for orders?
Yes, you can still make an application to a family law court for parenting orders. However, the first stage of the process for all applicants will involve attending mediation. After the 1st July 2007 all applicants for parenting orders will need to provide with their application a certificate issued by a family dispute resolution practitioner stating that they have attended or tried to attend family dispute resolution, or, in the opinion of the practitioner, do not need to go.
I want to change an order — what do I need to do?
If both parents agree on how it should be changed, an application can be made for consent orders, unless the original orders say that any variation must involve the court.
Where only one parent seeks a variation an application must be made to the court with evidence to justify the variation.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.