Family dispute resolution

What is family dispute resolution?

Family dispute resolution is a process that involves a trained dispute resolution practitioner assisting the parties to come to agreement. It is usually undertaken in face-to-face discussion between the parties and the practitioner, but it can take place by telephone, videoconference or even on the internet. The successful results of family dispute resolution can be expressed in the form of a parenting plan or other agreement that may be signed by the parties.

There is a special form of family dispute resolution practice called ‘shuttle mediation’ in which the parties sit in separate rooms and the practitioner moves between them transmitting the parties’ points of view and negotiating positions. This method is used if one party doesn’t want contact with the other party – either because they are concerned for their safety, or they consider that they may not be able to negotiate effectively in a face-to-face situation with their former partner.

Most of the time people attend family dispute resolution without a lawyer, but lawyers or other support persons can be present if both parties agree.

Family dispute resolution is provided by practitioners who either work privately or are employed by community agencies. Practitioners must be registered under the Family Law Act to provide a valid Section 60I certificate. To find a registered practitioner in your area, visit Family Relationships Online.

Family dispute resolution for parenting issues

Many couples are able to agree on appropriate, workable arrangements for caring for their children in their new circumstances after separation. They do not need to approach a court or have anything to do with the Family Law Act. They are not required to write down their agreement or notify any government authority.

On the other hand, many separating couples do have difficulty in reaching agreement on post-separation parenting arrangements, or feel that they need a greater level of formality in the form of their agreement for the sake of certainty.

There are a variety of approaches that may be taken by a separating couple to assist them to achieve workable parenting agreements. These include:

  • making a parenting plan – with or without the assistance of a lawyer or professional mediator (called a ‘family dispute resolution practitioner’);
  • making a private agreement and then filing it at court (called ‘consent orders’); or
  • if the couple cannot agree, starting a case in court and asking a judge to decide.

Compulsory family dispute resolution

The changes to the Family Law Act in 2006 encouraged genuine effort by separating people to resolve their parenting issues privately, without starting a case in court. Society now recognises that the extended and bitter conflict involved in family law court cases often has a seriously detrimental effect on the people involved, and most particularly on children that become caught up in parental disputing. We now accept, also, that it is usually parents, rather than judges, who together can make the best decisions for their children.

Since 1 July 2007, a person cannot start a case on parenting issues in a family court unless they have a certificate issued by a registered family dispute resolution practitioner (called a ‘Section 60I certificate’). This means that, unless an exemption applies, a person must find a registered family dispute resolution practitioner and then attempt a family dispute resolution process with the other party to try to resolve the dispute.

Depending on the circumstances, there a number of statements that might be made on the certificate issued, for example:

  • that the person engaged in a family dispute resolution process and did make a genuine effort to resolve the issues;
  • that the person did not make a genuine effort to resolve the issues;
  • that family dispute resolution was inappropriate for the two people (often, because of family violence); or
  • that one party refused to attend and so the family dispute resolution did not proceed.