Family Dispute Resolution

Most separated parents reach parenting agreements relatively easily and informally – perhaps with the assistance of family lawyers and/or counsellors. The method by which parents reach agreements can affect the quality of the agreement.

Where parents cannot reach parenting agreements, they are obliged to make a genuine effort to resolve issues in dispute including compulsory attendance at primary dispute resolution.

Following 1 July 2007, this obligation includes having to obtain a certificate from a family dispute resolution practitioner prior to commencing Court proceedings in respect of parenting issues. The Certificate will state one of the following:

  1. That the parent did not attend family dispute resolution for good reason such as the refusal or failure of the other party to attend.
  2. That the parent did not attend family dispute resolution because the family dispute resolution practitioner considered it not appropriate (for example due to issues of domestic violence or abuse etc).
  3. The person did attend family dispute resolution with the other party and that both made a genuine effort to resolve the issues.
  4. That the person did attend family dispute resolution but that they or the other party did not make a genuine effort to resolve the issues.

The certificate is not necessary for the commencement of Court proceedings in certain circumstances being:

  • Abuse of the child by one of the parties or risk of abuse if there was delay in applying for the Order.
  • Family violence on one of the parties or risk of family violence.
  • Urgency.
  • One of the parties is unable to participate effectively in family dispute resolution due to factors such as disability, physical remoteness etc.

Family Relationship Centres are being established by the Federal Government to provide dispute resolution services to separated families and to issue the necessary certificate. Counsellors and mediators operating outside of the Family Relationship Centres can also obtain accreditation for the purposes of issuing certificates.

Getting the Best Results from Primary Dispute Resolution

Family dispute resolution practitioners (whether operating within or outside of Family Relationship Centres) are intended to be independent mediators assisting parents in reaching agreement. They cannot force parents to reach agreements or to enter into parenting plans. They cannot give legal advice. Parenting arrangements (whether reflected in parenting plans or court orders or not) have financial ramifications on issues including on property settlements and child support.

Whilst family dispute resolution practitioners are meant to be independent, they have obligations prescribed by the Family Law Act including to advise parents that they should consider children spending equal time with each parent if it is reasonably practicable and in the best interests of the children, and if not, consider whether it is reasonably practicable and in the best interests of children to spend substantial and significant time with each of them. Further, they are required to inform parents they should consider entering into a parenting plan. Parenting plans are important documents that whilst not legally enforceable can override Parenting Orders in certain circumstances. They should only be entered into after careful consideration.

Prior to attending primary dispute resolution, you should carefully consider what parenting arrangements you believe to be in the children’s best interests. It would be useful to write down your proposal to assist in discussions at family dispute resolution. You should also carefully consider your reasons for believing your proposal is in the children’s best interests – taking into account the considerations described by the Family Law Act in considering what is in a child’s best interest. In particular, if you anticipate a dispute as to how much time the children should spend with each parent, you should carefully consider the issues set out in Section 65DAA(5), and also the primary and additional considerations prescribed by Section 60CC.

You should also consider both short term and long term issues. For example, will a proposed parenting arrangement restrict your ability to move in the future? Alternatively, do you wish to restrict the other parent moving in the future to restrict your time with the children?

Whilst parents are barred from having lawyers attend with them at family dispute resolution, parents are entitled to get legal advice before and after dispute resolution, and before entering into parenting plans or Court Orders. Such advice may be about the enforceability of the agreement, whether it covers all relevant issues, how it compares to a likely court determined outcome, financial ramifications and the best ways to document the agreement.

Most separated parents will continue to reach parenting agreements relatively easily and informally.

Parents who cannot agree are obliged (in most cases) to attend compulsory family dispute resolution before commencing court proceedings.

We provide mediation and family dispute resolution. For more information, see our pages on Mediation/Family Dispute Resolution.

 

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