The Court expects that people involved in family law disputes will only make an application to the Court when there is no other readily available means of resolving their dispute.
There is an expectation that people in dispute will attempt to resolve disputes by compromise, discussion and dispute resolution if it is safe to do so. In parenting matters, Family Dispute Resolution (FDR) is, with limited exceptions, mandatory before any application can be filed. Dispute resolution is a broad term that includes negotiation through lawyers, collaborative practice, conciliation, mediation or FDR and arbitration. The expectation to continue to look for opportunities to resolve disputes applies both before and during proceedings.
This page outlines the types of dispute resolution and where assistance might be found to take part in dispute resolution. The information below is not an exhaustive list of the services available. You should always obtain legal advice as to the options available to you and which options will best meet your needs.
Dispute resolution services can provide an affordable and timely option for resolving disputes, while allowing you greater input into the process and the outcome.
You should ensure than any person you engage to assist with FDR is registered as a Family Dispute Resolution Practitioner (FDRP) with the Commonwealth Attorney-General’s Department or, if conducting arbitration, is accredited with AIFLAM, the Australian Institute of Family Law Arbitrators and Mediators.
What is dispute resolution?
Dispute resolution refers to a range of services designed to help you resolve disputes arising from separation or divorce, and improve your relationship with the other party/ies. Dispute resolution can involve any of the following:
A family counsellor will help you and your family deal with personal and interpersonal issues relating to marriage, separation, or divorce; including issues relating to the care of child/ren (see Part II, Division 2 of the Family Law Act 1975). These services can be located using the Family Relationships Online website.
Family dispute resolution
FDR is a process in which a FDRP, independent of the parties, helps people to resolve some or all of their disputes arising from separation or divorce (see Part II, Division 3 of the Family Law Act 1975). FDRPs are trained in assisting people to resolve disputes but they cannot give legal advice or impose a decision.
The Attorney-General’s Department maintains a register of all accredited FDRPs which can be searched. This register includes the details of private FDRPs who conduct FDR for varying fees.
Persons who have a parenting dispute about matters that may be dealt with by an order under Part VII of the Family Law Act, must make a genuine effort to resolve that dispute by family dispute resolution before filing a parenting application for a Part VII order to the Court (see section 60I(9) for exceptions to this requirement).
FDR is offered through Family Relationship Centres (FRCs). FRCs provide information, referral and individual sessions free of charge. Joint dispute resolution sessions for parenting and/or property matters are provided free of charge for one hour per couple. For the second and third hour of dispute resolution, Centres will charge clients with a gross annual income of $50,000 or more $30 per hour; clients whose gross annual income is less than $50,000 or who receive Commonwealth health and social security benefits will not be charged a fee. FRCs may also charge fees in accordance with the Centre’s fees policy where further dispute resolution sessions are required (four or more hours).
The federal government also subsidises FDR services which are offered by a large number of community-based services so that FDR through these agencies, while not free, is modestly priced and generally with a sliding fee scale based on income. These services can be located using the Family Relationships Online website.
FDR can also be offered by the Court with a judicial registrar who has been authorised as an FDRP by the Court’s CEO. Agreements reached at court-based FDR can be formalised and made into binding court orders. Agreements reached at FDR conducted outside the Court are not automatically binding and there are obligations on the FDRP to explain these issues to parties.
Post-separation parenting programs
While not a form of dispute resolution, these programs are designed to assist parents and are usually provided as a series of small group lectures and discussions. They teach strategies for resolving disputes with the other party/ies and practical ways to help child/ren adapt to separation. A parenting orders program is a type of post-separation parenting program, designed to assist in putting court orders into practical effect, including for party/ies who are having difficulty complying with orders. Parenting orders programs can involve a combination of family counselling, dispute resolution, and group lectures and discussions. For consistency in parenting skills and resources, it can often be helpful for parents to attend the same post-separation program, although not at the same time.
You may also participate in, or be referred to:
- Conciliation, and/or
What are the benefits of dispute resolution?
Dispute resolution provides you with an opportunity to improve your relationship with the other party/ies and reach an agreement about legal and co-parenting issues that are important to you. This allows you to make your own decisions and, because all parties are involved in reaching a resolution, it improves the chances that the agreement will last into the future and reduce conflict for you and your children. You may also learn more effective ways to communicate with the other party/ies which may assist you to resolve future disputes.
Dispute resolution is a more affordable, timely, and less stressful means of resolving disputes than a court process or trial.
When does dispute resolution happen?
Dispute resolution may happen within the Court, with officers of the Court such as a judicial registrar and court child expert. The Court will make orders for these events and it is essential that you attend.
Dispute resolution may also take place at an external community-based organisation, or with private practitioners and in some cases, the Court will make an order requiring you to attend dispute resolution after proceedings have been commenced. You must comply with the order.
Judicial registrars and private mediators or FRDPs must provide a Certificate of Dispute Resolution at the conclusion of these events. There can be costs consequences for non-compliance with court orders for dispute resolution.
Who pays for the dispute resolution?
FDR within the Court is free. A Conciliation Conference, which involves only financial matters, incurs a fee payable under the Family Law (Fee) Regulations 2022.
Dispute resolution with community-based organisations may attract modest fees. If the Court orders you to attend FDR and/or family counselling, including with a specific community-based organisation, you will be required to arrange your own appointments and you will generally be required to pay any associated costs. However, these services are subsidised by the government and the cost to you will be based on your financial circumstances.
Fees are payable to mediators and dispute resolution practitioners in private practice.
If you have been ordered to undertake a post-separation parenting program, unless the order otherwise states, you will be required to pay for the costs of your attendance at that program.
What documents should you take to dispute resolution?
When the Court makes orders for you to attend dispute resolution, orders will also be made about what documents are required to be completed, exchanged and provided to the person conducting the dispute resolution. Depending on the nature of the issues, these documents will include documents filed with the Court (such as Applications, Responses, Affidavits), and expert reports, valuations and confidential case summaries.
Can child/ren be involved in dispute resolution?
Parents engaging in private mediation may agree to participate in a child inclusive process. Details about that process can be obtained from mediators, FDRPs, child experts and Family Relationships Centres offering those services.
If a court order is made for a Child Impact Report prior to a court-based FDR conference, the court child expert preparing the report will make an assessment about whether or not the children should be directly involved in the process, and you will be informed about what is required in those circumstances. You are expected to comply with any requests for child/ren’s participation from the court child expert.
Unless the Court makes an order, or the child/ren’s participation in a Child Inclusive Mediation has been agreed by the parties in advance, you should not take your child/ren to the appointment or discuss the appointment with them, other than in the way recommended by the court child expert. However, if in consultation with the dispute resolution provider, it becomes apparent that it may be appropriate for the child/ren to be involved, the consent of both parents is required.
Is dispute resolution confidential?
Communications in the course of dispute resolution are, except in certain circumstances, confidential and inadmissible in any court. The dispute resolution practitioner may be required by law to report certain disclosures or risk.
For dispute resolution that occurs inside and outside the Court, the practitioner must complete the prescribed Certificate of Dispute Resolution which will indicate whether:
- the matter has resolved in whole or in part
- the parties attended, and
- the parties made a genuine effort to resolve issues.
That certificate must be provided to the Court.
What happens after dispute resolution?
When an agreement is reached at court-based dispute resolution, the judicial registrar conducting the conference will make interim or final orders reflecting the agreement. Those orders take effect immediately.
When agreement is reached at private or community-based dispute resolution, you and the other party/ies can file consent orders with the Court or discontinue the Court proceedings and enter into a parenting plan. This will bring your court action to an end.
For more information on parenting plans, visit www.familyrelationships.gov.au
For more information about consent orders see:
NOTE: a parenting plan is not legally enforceable. It is different from a parenting order, which is made or endorsed by the Court. You should obtain legal advice about the impact of parenting plans, including on existing court orders.
If an agreement is not reached, your case will proceed to a hearing. It is important to remember that you and the other party/ies can request a court based dispute resolution conference, attend private mediation or community-based FDR and/or reach an agreement and submit consent orders at any stage before the final hearing.