Family Dispute Resolution

Previously the term ‘primary dispute resolution’ was used to cover almost every form of assistance in family conflicts, including counselling, mediation and arbitration.  The term was poorly understood in the community and its use in the legislation made it difficult to differentiate specific types of intervention.

To assist understanding, amendments to the Family Law Act 1975 removed the term ‘primary dispute resolution’ and replaced it with more specific references  – such as family counselling and family dispute resolution.

Family dispute resolution is a process conducted by an independent practitioner to assist people affected, or likely to be affected by separation or divorce to resolve some or all of their disputes with each other without going to court.  A legal definition can be found in the Family Law Act 1975.  However, the term ‘family dispute resolution’ is still a term that covers many different sorts of ADR processes.  Mediation and conciliation can both be types of family dispute resolution. 

Family dispute resolution is important under the Family Law Act because where an individual wants to apply to the court for a parenting order they will first need to attend family dispute resolution and obtain a certificate from an accredited family dispute resolution practitioner confirming an attempt at family dispute resolution was made. This requirement applies to all applications, including those seeking changes to an existing parenting order.

There are some exceptions to the requirement to attend family dispute resolution, such as those cases involving family violence, child abuse, urgency or where people are seeking consent orders.  Unless one of the exceptions applies, a certificate from an accredited family dispute resolution provider must be filed with the court application.

Agreements reached during family dispute resolution about the care of a child can be recorded in a parenting plan.  A parenting plan must be in writing, dated and signed by both parents.  Parenting plans or other negotiated agreements can be made legally binding by applying to Court for a consent order.  A court will only make a consent order if it believes the agreement is in the best interests of the child.