Introduction to Family Dispute Resolution

Current at 16 January 2024

When dealing with family conflict, the law always encourages parties to resolve their disputes without having to resort to litigation, and there are a number of dispute resolution mechanisms available. The affected parties have the option to engage with a process of their own choosing or alternatively, can seek the assistance of the court who may refer the parties to family counselling, family dispute resolution, or other alternative family services as outlined in the Family Law Act 1975 (Cth) (the FLA). This can include:

private negotiation;
counselling;
family dispute resolution; and/or
arbitration.

Private Negotiation

Parties to a family law matter can engage with private negotiation either with the help of a lawyer or between the parties themselves.

The obvious attraction with negotiating privately is the cost benefit. However, family law matters can often be fraught with complexity. If you do require assistance, an experienced legal practitioner who is skilled in the area of family law may be able to provide you with the appropriate assistance your matter requires.

Counselling

There are a number of counselling options available to parties involved in a family conflict and can involve either relationship or personal counselling. Additionally, the provisions of the FLA allow for accredited family counsellors to assist.

How does the family counselling process operate?

Any statements made by the parties and any child during family counselling and family dispute resolution are for the most part, confidential and cannot be put before a court.

Family counsellors, practitioners, or any other professional referred to by the family counsellor or practitioner, generally cannot disclose any information contained in statements. However, under the following circumstances, a family counsellor, practitioner or other professional may be compelled to release information:

the counsellor or practitioner is compelled by law to report the information, such as instances of child abuse or if a there is a risk of abuse;
the parties or persons with parental responsibility for the child involved in the matter have provided their consent;
the counsellor or practitioner holds the reasonable belief that disclosure is necessary in order to protect the child from harm, or to protect against threats to a person's life, health or property;
the information would help the independent child's lawyer to perform their role;
under s 60L of the FLA, it is necessary for the provision of a family dispute resolution certificate.

Family dispute resolution

Family dispute resolution is an all encompassing term that includes both mediation and conciliation, as outlined in s 10F of the FLA.

Family dispute resolution practitioners are integral to the mediation and conciliation process and must possess the appropriate qualifications, training, experience, and accreditation as outlined in both the FLA and the Family Law Regulations 1984 (Cth) (the Regulations). Family dispute resolution practitioners must be registered with the Attorney-General's Department in order to be accredited under the provisions outlined in the FLA.

The dispute resolution process

Generally speaking, family dispute resolution practitioners will initially speak to the parties individually before a joint session is held. The initial confidential preliminary sessions are conducted to outline the process. Furthermore, the preliminary discussions can also allow participants to raise any concerns they may have in relation to the family dispute resolution practitioner tasked to deal with their matter.

Once the joint sessions have commenced, sessions can be conducted over the phone, via video, or in separate rooms where the practitioner will play the intermediary between the parties. Upon agreement between the parties, legal representatives or a support person can also be involved in a joint session. It may sound contradictory but it is common to have a lawyer at your mediation to assist you to achieve the best outcome.

The joint sessions allow the parties to articulate any outstanding issues that need to be dealt with and what they hope to achieve. An agenda is drawn up for the particular session and each issue is addressed and the parties are allowed to voice their thoughts without interruption. At the conclusion of the session, the practitioner may summarise and restate the points of discussion with the aim of identifying, and investigating any possible areas of agreement that may be reached.

It should be emphasised that the family dispute resolution process provides a space for the parties to express their feelings; however, it is generally not a therapy session.

What happens if an agreement is reached during the family dispute resolution process?

Any agreements reached can involve a family dispute resolution agreement, a signed memorandum of understanding, or alternatively, a parenting plan. The agreements are generally not legally enforceable. However, upon agreement between the parties, such agreements may be filed later in court, which will then take the form of consent orders – which are enforceable.

Arbitration

Upon agreement between the parties, arbitration can be undertaken prior to litigation or after a matter is heard in court, although arbitration is not compulsory.

Similar to the adversarial system found in court, the parties present evidence and arguments before an independent third party, who will then make a determination on the issues – which are legally binding.

Arbitration is often referred to as "private litigation", where parties appoint their own decision maker. The clear advantage with arbitration is the ability to avoid extensive delays in the Family Court system.

Australia: Introduction to Family Dispute Resolution