Family Mediation

What is Family Dispute Resolution under the Family Law Act?

Family Dispute Resolution is the legal term for services (such as mediation) given to mediation by the Family Law Act and Regulations. Family Dispute Resolution helps people resolve their issues concerning arrangements for their children.

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Who can provide Family Dispute Resolution?

Only approved Family Dispute Resolution Practitioners can provide these services and issue certificates under the Family Law Act.

An accredited Family Dispute Resolution
practitioner is a person who meets standards contained in the Family Law  (Family Dispute Resolution Practitioners) Regulations 2008.

Is Family Dispute Resolution compulsory?

You can only apply to a family law court for a parenting order when you have a certificate from an accredited Family Dispute Resolution practitioner which states that you have made a genuine effort to resolve your dispute through Family Dispute Resolution unless one of the exceptions set out below apply. The requirement to participate in Family Dispute Resolution  applies to new applications, and applications seeking changes to an existing parenting order but not to consent orders.

What are the exceptions?

There are some exceptions to this requirement where:

  • you are applying for consent orders
  • you are responding to an application the matter is urgent;
  • there has been, or there is a risk of, family violence or child abuse;
  • a party is unable to participate effectively (e.g., due to incapacity or geographical location), or
  • a person has contravened and shown a serious disregard for a court order made in the last 12 months.

If you want to apply to the Family Courts you will need to provide information to demonstrate that one of the exceptions applies to you. If you use the exception relating to family violence or child abuse, you will also need to get information about your options and the services that can help you from a family counsellor or Family Dispute Resolution practitioner.

Who can go to Family Dispute Resolution?

Usually only the people directly involved unless everyone agrees that other interest people can attend.  In private processes the lawyers of the parties may also attend. However in the case of government sponsored family relationship centres lawyers are not included.

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Will your child be included in Family Dispute Resolution?

No, but child inclusive mediation services are available where a counsellor will speak to the children outside of the mediation process and report back to the parents and mediator. This needs to be assessed by the Family Dispute Resolution Practitioner and agreed to by the parties.

What information will a Family Dispute Resolution practitioner provide you with?

Before you start Family Dispute Resolution, your Family Dispute Resolution practitioner must tell you about the Family Dispute Resolution process, your rights (including your right to complain about the service), his or her qualifications, and the fees charged. If you are trying to resolve a disagreement about your children, the Family Dispute Resolution practitioner must give you information about parenting plans and other services available to help you.

What happens during Family Dispute Resolution?

Before Family Dispute Resolution can commence, the family dispute resolution practitioner will assess the circumstances to see whether Family Dispute Resolution is suitable for your situation.

Family Dispute Resolution practitioners are impartial and will not take sides. They can help you to explore family issues in an objective and positive way. Family Dispute Resolution concentrates on resolving specific disputes but it is not counselling. Family Dispute Resolution can help both of you to discuss issues, look at options, and work out how best to reach agreement. Importantly,
you can use Family Dispute Resolution to develop a parenting plan to set out arrangements for your children.

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Confidentiality in Family Dispute Resolution

Everything said during Family Dispute Resolution is confidential – except in certain circumstances, such as to prevent a threat to someone’s life or health or the commission of a crime. What is said during the process can’t be used in evidence in Court. A Family Dispute Resolution practitioner must report child buse or anything that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.

What if you are feeling unsafe?

It is important that you feel safe, and are safe before, during and after Family Dispute Resolution. Family Dispute Resolution Practitioners will take steps to help you feel safe even if that means the process is conducted by telephone or in separate rooms. Sometimes the Family Dispute Resolution Practitioner might decide that your matter is unsuitable for mediation because of those safety concerns.

What happens if an agreement is reached during Family Dispute Resolution?

If you reach agreement on arrangements for your children, this can be recorded as a parenting plan.  A parenting plan must be in writing, dated and signed by both parents to be effective and recognised under the Family Law Act. Sometimes after a parenting plan is made one or both parties want to have consent orders made.  If this is the case then that application can be made to the Courts but not during the mediation process.

Before applying to court you will need a certificate from an accredited Family Dispute Resolution practitioner.

The certificate will say one of the following:

  • the other party did not attend;
  • you and the other party attended and made a genuine effort to resolve the dispute;
  • you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute;
  • the Family Dispute Resolution practitioner decided your case was not appropriate for Family Dispute Resolution, or
  • the Family Dispute Resolution practitioner decides it was not appropriate to continue part way through the Family Dispute Resolution process.

You should be aware that if you do not attend Family Dispute Resolution or make a genuine effort to attend, this can influence the timing of your court hearing. The court may also order you to pay the other party’s legal costs.

Mediation assists families to resolve issues regarding arrangements for their children in a collaborative way. The parents are assisted to create an agreement which they themselves have created and agreed upon. The alternative is to apply to court and obtain a decision from a person (the Judge) who does not know nor love your children. Which makes more sense to you?

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Randal Binnie

Professional Mediator/Notary Public/Family Lawyer

Randal Binnie, a leading Brisbane Mediator, is a partner of:

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