HOMEDispute resolution in family law proceedings
Dispute resolution in family law proceedings
PUBLISHED: 21/10/2020
It is the expectation of the Court that people involved in family law disputes will only make an application to the Court when there is no other readily available means of resolving their dispute.
There is a general expectation that people in dispute will attempt to resolve disputes by compromise, discussion and alternate dispute resolution (ADR) if it is safe to do so. ADR is a broad term that includes negotiation through lawyers, conciliation, mediation or Family Dispute Resolution (FDR) and arbitration. This expectation applies both before and during proceedings.
This page is intended to assist in understanding the types of dispute resolution and where assistance might be found to take part in in dispute resolution. The stakeholder information below is not an exhaustive list of the services available. You should always obtain legal advice as to the options available to you and which options will best meet your needs.
Dispute resolution services can provide an affordable and timely option for resolving disputes, while allowing you greater control, management and input into the process and the outcome.
You should ensure than any person you engage to assist with family dispute resolution (FDR) is accredited as a Family Dispute Resolution Practitioner (FDRP) or, if conducting arbitration, is an AIFLAM accredited arbitrator. AIFLAM is the Australian Institute of Family Law Arbitrators and Mediators.
What is dispute resolution?
Dispute resolution refers to a range of services designed to help you resolve disputes arising from separation or divorce and improve your relationship with the other party/s. Dispute resolution can involve any of the following:
Family Counselling
A family counsellor will help you and your family deal with personal and interpersonal issues relating to marriage, separation, or divorce; including issues relating to the care of child/ren (see Part II, Division 2 of the Family Law Act 1975). These services can be located using the Family Relationships Online website.
Family Dispute Resolution
FDR is a process in which a family dispute resolution practitioner (FDRP), independent of the parties, helps people to resolve some or all of their disputes arising from separation or divorce (see Part II, Division 3 of the Family Law Act 1975 (Cth) (‘Family Law Act’)). FDRPs are trained in assisting people to resolve disputes and FDRP’s external to the Court are accredited by the Commonwealth Attorney-General’s office. FDRPs cannot give legal advice or impose a decision.
Persons who have a parenting dispute about matters that may be dealt with by an order under Part VII of the Family Law Act, must make a genuine effort to resolve that dispute by family dispute resolution before filing an application for a Part VII order to the Court (see s. 60I(9) for exceptions to this requirement).
The Attorney-General’s office maintains a register of all accredited FDRPs which can be searched. This register includes the details of private FDRPs who conduct FDR for varying fees.
FDR is offered for free through Family Relationship Centres (FRCs). FRCs are funded by the federal government to offer FDR and family counselling services as well as a number of other services that might assist in either supporting you or assisting you to resolve disputes.
The federal government also subsidises FDR services which are offered by a large number of community based services so that FDR through these agencies, whilst not free, is modestly priced and generally with a sliding fee scale based on income. These services can best be located using the Family Relationships Online website .
FDR can also be offered by the Court with a Registrar who has been authorised as an FDRP by the Court’s CEO. Agreements reached at Court-based FDR can be formalised and made into binding Court orders.
Conciliation
A conciliator, who is independent and impartial, will help you and the other party/s resolve financial issues arising from separation or divorce. Conciliation Conferences within the Court are conducted by a Registrar in financial matters. At the conference, the Registrar will look at the case from both sides and help you explore options for settling your case without any further legal action. A Registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases. Agreements reached at a Conciliation Conference can be formalised by the Registrar and made into binding Court Orders.
Mediation
Mediation is a process where the parties involved in a dispute are assisted by an independent third party to help resolve their dispute. Parties may agree to attend mediation with a mediator who can help them resolve financial and/or parenting issues. Mediation can take place before or after court proceedings are commenced. Agreements about the care of children which are reached at mediation can be formalised by way of Parenting Plans and steps can also be taken for mediated agreements to be made binding by the Court.
Post Separation Parenting Program
These programs are usually provided in the form of a series of small group lectures and discussions. They are designed to teach you strategies for resolving disputes with the other party/ies and practical ways to help your child/ren adapt to separation. A parenting orders program is a type of post separation parenting program designed to assist in putting Court orders in to practical effect including for party/ies who are having difficulty complying with orders. Parenting orders programs can involve a combination of family counselling, dispute resolution, and group lectures and discussions.
For consistency in parenting skills and resources, it can often be helpful for parents to attend the same post separation program, although not at the same time.
Arbitration
Arbitration is a process (other than the judicial process) in which parties to a financial dispute present arguments and evidence to an independent arbitrator, who makes a determination to resolve the dispute (see section 10L of the Family Law Act). Parties agree on who is to be appointed as the Arbitrator (usually a senior member of the legal profession) and, with the consent of all parties, the Court may make an order referring Part VIII proceedings or Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement) to arbitration. Parties may also undertake Private Arbitration (which is arbitration that has not been ordered by the Court) in relation to:
Part VIII, Part VIIIA and/or, Part VIIIAB proceedings,
Part VIIIB proceedings or section 106A proceedings; or
Any part of such proceedings; or
Any matter arising in such proceedings; or
A dispute about a matter with respect to which such proceedings could be instituted.
Arbitrators are experienced legal practitioners and receive special training in arbitration. Arbitrators must be accredited by AIFLAM to be able to conduct family law arbitrations. A list of arbitrators can be found on the AIFLAM website . The site includes a search function that allows arbitrators to be located by geographical area.
Personal safety
If there is a history of family violence it may not be appropriate for you to attend dispute resolution or it may be necessary to structure the dispute resolution event in a way that ensures your safety. The Court is able to take the necessary steps to protect your safety and you should ensure the Court is aware of the issues, including by providing a copy of any family violence order.
If you are engaging in dispute resolution outside the Court, you should also speak to the mediator or the dispute resolution service provider about your options and the support services that are available. If you have a family violence order, or have been the victim of family violence, you should tell the mediator or the dispute resolution service provider about it at the earliest opportunity.
What are the benefits of dispute resolution?
Dispute resolution provides you with an opportunity to improve your relationship with the other party/ies and reach an agreement without the need for litigation. This allows you to make your own decision and retain control of the outcome. Because all parties are involved in reaching a resolution, it improves the chances that the agreement will last into the future and can cover all of the issues important to you. You may also learn more effective ways to communicate with the other party/ies which may assist you to resolve future disputes.
Dispute resolution is a more affordable, timely, and less stressful means of resolving disputes.
Where does dispute resolution happen?
Dispute resolution may happen within the Court with officers of the Court such as a Registrar or Family Consultant. The Court will arrange these appointments and it is essential that you attend.
Dispute resolution may also take place at an external community-based organisation or with private practitioners. In some cases the Court will make an order requiring you to attend dispute resolution and requiring you to make your own arrangements with a specific organisation or practitioner. You must do so within the time period specified in the order.
In some cases the Court will send your contact details to the selected agency. Upon receipt, the agency will contact you to arrange an appointment. If your contact details change, you should advise the agency, and the Court, as soon as possible.
Who pays for the dispute resolution?
Dispute resolution within the Court is free except for a Conciliation Conference in which a fee is payable under the Family Law (Fees) Regulation 2012.
Dispute resolution with community based organisations may attract modest fees. The Court may also order you to attend to family dispute resolution and/or family counselling including with a specific community based organisation. You will be required to arrange your own appointments and you will generally be required to pay any associated costs. However, these services are subsidised by the government and the cost to you will be based on your financial circumstances.
Fees are payable to mediators and dispute resolution practitioners in private practice.
If you have been ordered to undertake a post separation parenting program, unless the order otherwise states, you will be required to pay for the costs of your attendance at that program.
What documents should you take to dispute resolution?
You should take the following documents to your appointment (if you have them):
Court orders
family violence orders, and
any other Court documents.
Can child/ren be involved in dispute resolution?
The Court may make an order for your child/ren to participate in dispute resolution or you may engage in what is known as Child Inclusive Mediation. Unless the Court makes an order, or the child/ren’s participation in a Child Inclusive Mediation has been agreed by the parties in advance, you should not take your child/ren to the appointment or discuss the appointment with them. However, if, in consultation with the dispute resolution provider, it becomes apparent that it may be appropriate for the child/ren to be involved, the consent of both parents is required.
Is dispute resolution confidential?
Communications in the course of dispute resolution are, except in certain circumstances, confidential and inadmissible in any Court. The dispute resolution practitioner may be required by law to report certain disclosures or risk.
For dispute resolution that occurs outside the Court, the practitioner may notify the Court in writing as to whether or not your matter settled, what issues (if any) remain in dispute, and any recommendations they have for future management of your case.
What happens after dispute resolution?
If an agreement is reached, you and the other party/ies can discontinue the Court proceedings and enter into a parenting plan or file consent orders with the Court. This will bring your Court action to an end.
For more information on parenting plans visit www.familyrelationships.gov.au
For more information about Consent orders see:
How do I apply for Consent Orders
NOTE – a parenting plan is not legally enforceable. It is different from a parenting order, which is made or endorsed by the Court. You should obtain legal advice about the impact of parenting plans, including on existing Court Orders.
If an agreement is not reached, your case will proceed to a hearing. It is important to remember that you and the other party/ies can reach an agreement at any stage before the hearing.
Alternative dispute resolution, settlement and mediation services - stakeholder information
Legal assistance can be obtained through Legal Aid, Community Legal Centres or private legal practitioners.
Legal Aid is generally subject to means and assets tests as a well as restrictions on the type of matters that assistance can be provided for.
Community Legal Centres can provide free advice and some, but not all, can assist you with representation. A list of Community Legal Centres in each State and Territory can be found on the Community Legal Centres Australia website
Private legal practitioners work on a fee for service basis. Each State and Territory has a Law Society or Institute (for solicitors) as well as a Bar Association (for Barristers). Law Societies and Bar Associations often operate:
Referral services to a legal practitioner who can help;
Mediation services; and/or,
Maintain lists of arbitrators.
Law Society websites all have a “Find a Solicitor” search function to search for solicitors in your area.
Emphasis on resolving disputes
Where it is appropriate, parties are encouraged to reach agreements without a court hearing.
