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 / parties try to come to an agreement. The FDRP is an independent 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 about the problem and – if possible – reach an agreement.
In some types of family dispute resolution, the people simply meet with the mediator together. This is the type used by the Family Relationship Centre and Relationships Australia. Another common type of family dispute resolution is called a Family Law Conference (FLC). In FLC people are encouraged to have lawyers come to the mediation with them.
Family dispute resolution is generally confidential. This means that what is said at mediation can’t be used in any later court case. The FDRP will explain this to you at the beginning of the session and talk to you about any exceptions. Being confidential 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, after separation or after a court case has started.
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, about 70% of family dispute resolutions 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 assist you. Because any agreement you make is decided between you and the other person, agreements tend to be more suitable for your particular circumstances, and more likely to be followed in the future.
In addition, there are some times when you must attempt family dispute resolution before going to court. You can read more about that below.
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 family dispute resolution especially in the form of ‘conciliation’ before the court case can continue.
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 unless there is reason for the court to believe:
- your child has been or may be abused or neglected if there is a delay because of family dispute resolution;
- there has been or is a risk of family or domestic violence;
- the matter is urgent; or
- the reason you are applying to the court is to enforce some court orders which are less than 1 year old.
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 only works if 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. They take family and domestic violence very seriously and will only do family dispute resolution if they can be sure that everyone is safe and that any mediation can be done fairly with both people being able to fully discuss 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, building or do the conference over the phone.
It is not possible to do family dispute resolution if there is a domestic violence order that stops each person from being involved in mediation. If necessary people might be able to apply to the court to vary their domestic violence order to allow an exception for family dispute resolution. A lawyer can give you more advice about that.
You can never be forced to go to family dispute resolution. If you do not feel safe because of family or domestic violence, tell the family dispute resolution service about your concerns as soon as possible. You don’t have to agree to participate and in the end the FDRP will decide whether family dispute resolution should be offered for you if there is or has been domestic violence.
Family dispute resolution and legal advice
You can still get legal advice even when you need to go to family dispute resolution. 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.
Going to family dispute resolution does not mean you have to come to an agreement. 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 person refuses to go to family dispute resolution?
Family dispute resolution cannot work unless each person involved wants to participate. If one person refuses to go, you may need the court to resolve 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 it has not worked, you then have the option of going to court. 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. 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.
There are two main types of written agreement in parenting issues.
Parenting 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, they put it in writing, sign and date it and it becomes what is called a ‘parenting plan’.
A parenting plan is a good faith agreement which is not legally enforceable. It can be taken into account if you end up having to go to Court after it has been made.
Where they are different, a parenting plan or order will over-ride any previous parenting plans or parenting orders. This applies even if the court orders have only just been made, or were made after a court hearing.
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.ntlac.nt.gov.au.