What is family dispute resolution?
Family dispute resolution means trying to come to an agreement about your parenting or property arrangements, rather than going to court. It often happens informally, for example when you use family or friends to help you work things out. Sometimes it is helpful to use independent, professional people.
The words ‘dispute resolution’ describe different ways people work towards an agreement. The most common type of dispute resolution in family law is mediation.
What is mediation?
Mediation is when a third person—usually called a mediator or under the Family Law Act a family dispute resolution practitioner (FDRP)—helps parents and other parties try to come to an agreement. The FDRP is an independent legal or social sciences professional, trained to help people try to come to an agreement. The FDRP cannot give you legal advice, make a decision for you or tell you what to do. Instead, they encourage people to talk to each other constructively about the problem and—if possible—reach an agreement about how to parent after separation or how to divide family property.
In some types of family dispute resolution, the people simply meet with the mediator together. This is the type mainly used by the Family Relationship Centre and Relationships Australia. Another type of family dispute resolution, used by legal aid commissions including NT Legal Aid, is called a family law conference (FLC). In an FLC people are encouraged to have lawyers come to the mediation with them and to record their agreement in a plan or consent orders filed with the court.
It is important to know that family dispute resolution is generally confidential, within certain limits, which the FDRP explains at the beginning of the mediation. This means that whatever is said at the mediation can’t be used later in a court case. Being confidential also means that people can feel free to talk about all the issues they are having problems with, to try to come to a lasting solution.
When can I try family dispute resolution?
You can try family dispute resolution at any stage, usually from six weeks after separation and even after a court case has started. You have to show a certificate from an FDRP saying that you have tried mediation before you can apply to court. This does not apply when:
- it is an urgent matter
- your dispute is about property only
- mediation is not appropriate in your circumstances (see Do I have to go to family dispute resolution).
Why should I try family dispute resolution?
Family dispute resolution can be very helpful in coming to an agreement about your children or property. At NT Legal Aid, more than 70% of FLCs end with some form of agreement between the people involved.
Family dispute resolution takes less time than going to court and can be significantly cheaper if you are paying a private solicitor to help you. Because any agreement you make is decided between you and the other person, agreements tend to be more suitable for your family’s particular circumstances, and more likely to be followed in the future.
Do I have to go to family dispute resolution?
For dividing property
When it comes to dividing property, the court strongly encourages parties to try family dispute resolution before applying to the court. If you don’t try, the court may order conciliation before the court case can continue. Conciliation is a form of family dispute resolution where a registrar will direct parties in their negotiations.
For arrangements about children
If you want court orders about children (called parenting orders), the law says you must try family dispute resolution first. This means you must make a genuine attempt to attend family dispute resolution and come to an agreement about the children. The exceptions to this are when there is reason for the court to believe:
- your child has been, or may be, abused or neglected if there is a delay to try family dispute resolution
- there has been or is some risk of family or domestic violence
- the matter is urgent
- the reason you are applying to the court is to enforce court orders that you got less than 12 months before.
If you believe your situation fits one of these exceptions you may need to show the court a certificate (called a section 60I Certificate) from the family dispute resolution service which confirms this.
There is more information about compulsory family dispute resolution on the Federal Circuit Court website.
Can I still go to family dispute resolution if there has been domestic violence?
Mediation works well when both people are able to safely and confidently discuss what they think should happen with their family law problem. Where there has been family or domestic violence it can make it difficult for both parents/parties to do this.
You should tell the family dispute resolution service if you are worried about your safety. These services take family and domestic violence very seriously and will only g ahead with family dispute resolution if they can be confident that everyone is safe and that both people will be able to fully discuss their side of the issue. There are many things they can do to make mediation safe and fair. For example, they may be able to have each person in a separate room, or separate building, or do the conference over the phone.
It is not possible to take part in family dispute resolution if there is a domestic violence order that stops the two people from being involved in mediation together, from coming near one another, or from talking to one another. If you have this kind of domestic violence order you might be able (if it is safe) to apply to the court to vary your domestic violence order to include the ‘exception for family dispute resolution’. A lawyer can give you more advice about this.
You will not be forced to go to family dispute resolution if you do not feel safe because of family or domestic violence. If you do not feel safe, tell the family dispute resolution service about your concerns as soon as possible. You don’t have to agree to take part and the FDRP will consider what you say and what the other party says in deciding whether family dispute resolution should continue on.
Family dispute resolution and legal advice
Even if you will never go to court, it is always best to get legal advice before you go to family dispute resolution. This way you are fully informed about your rights, responsibilities and options before you start, and you can start working out what your ideal agreement would look like.
Going to family dispute resolution does not mean that you have to come to an agreement or that you will be able to (although most people do!). When it comes to parenting issues, any agreement should be based on what you think is best for your children. You should never agree to something just for the sake of it or because you feel pressured.
What if the other person refuses to go to family dispute resolution?
If one person refuses to go, you may need the court to get involved in your dispute. You will need to explain to the court that you have asked for family dispute resolution, but that the other person refused. If you are applying for a parenting order, the FDRP can give you a section 60I certificate to show this. You will need this certificate when filing your application to start court proceedings for parenting issues.
What if we try and it does not work out?
If you have tried family dispute resolution and not come to an agreement, or not agreed on everything, you then have the option of going to court, and you might be able to get legal aid to help you do that. If you want to apply to the court a lawyer or the court staff can help you to fill out and file the correct forms. If the other person has applied to the court, you must be notified and you must attend court on the next court day. If you cannot go to court on a certain day, let the court know and get legal help (there is a free duty lawyer on some court days). If you need to attend court by telephone, you should ask the court how to arrange it.
What happens if we reach agreement?
An agreement can be put in writing or it may just be a verbal understanding between the people. If you put it in writing it will be either court orders or an informal ‘plan’.
Court orders are formal orders that are certified by the court. They are legally enforceable if they are not followed.
If people reach agreement about parenting issues or property issues, they put it in writing, sign and date it and it becomes what is called a ‘parenting plan’ or ‘property plan’.
A parenting plan is a good faith agreement which is not legally enforceable. It can be taken into account by the court if you end up having to go to court after it has been made. A plan can be made for a short time and then changed, for example as your children grow up.
If you are worried that the other person will not follow the parenting plan, you can make the agreement legally enforceable by asking the court to make it into parenting orders by consent. There is an Application for Consent Orders (do-it-yourself kit) available at the Family Court of Australia’s website.
It is strongly recommended that you get legal advice before you do this.
See the Children section for more information
See Property to find out the options that are available if you can reach an agreement.
What does family dispute resolution cost?
Dispute resolution services charge different rates depending on your financial situation. Contact the service directly and ask how much they charge.
How do I find out where family dispute resolution is offered?
You can call the Legal Aid Helpline on 1800 019 343 or visit www.familyrelationships.gov.au to find a Family Relationship Centre, FDRP or other mediation service near you.
The Family Law Pathways network publishes a guide to NT family dispute resolution services.
You can watch our short film Moving beyond Family conflict: A guide to family dispute resolution in the NT. It has 7 brief chapters which outline step by step the aspects of family dispute resolution.
This and more family law information can be accessed on our website at www.legalaid.nt.gov.au.