Family Dispute Resolution
The Family Law Act requires that, in most cases, before a person makes an application to the court for a parenting order, they must attend family dispute resolution. The Legal Services Commission provides one type of family dispute resolution where the parties may be legally assisted. This is known as Family Law Conferencing.
Family Law Conferencing
A Conference is the opportunity for parties involved in a conflict regarding their children's arrangements to resolve the dispute, avoiding the possibility of going to Court. It allows parties to develop and agree their own solutions to a dispute. It is a good way of settling the dispute without the stress and anxiety of going to Court.
Matters dealt with at a Conference
The common issues dealt with at a Conference are the time children spend with each parent, how they communicate with each parent, other specific issues, adult child maintenance and limited property settlement matters.
How is a Conference Organised
Conferencing is arranged by the Legal Services Commission.
To be eligible for conferencing, at least one of the parties involved in the dispute must have a current grant of Legal Aid. Any person applying for Legal Aid has to satisfy the income, assets, guidelines/merits test.
Parties involved in a Conference
Parties involved in Conferencing can be the children's mother, father, grandparent, other extended family members and an Independent Children's Lawyer, if one has been appointed. Conferencing is different to mediation in the community sector in that the parties attend with their solicitors who participate in the Conference process.
Matters suitable to Conference
Not all matters are suitable to Conference. The FDR Organiser's responsibility is to carefully screen all potential candidates for Conferencing. We speak with parties and explain our role and the service we provide and elicit information about their situation. We are mindful of safety issues such as family violence. It is possible to still Conference when there are family violence issues and a intervention order is in place. We would conduct a shuttle Conference in these circumstances. Additionally there may be child abuse, drug, alcohol, mental health or other health issues that have to be taken into account.
If we consider it inappropriate to Conference a matter we would inform the Grants Officer. They would then consider whether further funding, such as litigation funding, should be granted.
If we deem it appropriate to Conference a matter, we would write to the other party formally inviting them to attend a Conference. They are informed of their option to seek legal representation.
It is not compulsory for the other party to have a solicitor present with them at a Conference. We encourage the other party to at least obtain legal advice if not represented at a Conference.
What happens at a Conference
Conferences can be held jointly (all parties in the same room), or separately if there are safety issues or other issues that will impact on the ability to freely discuss and deal with the matters raised (shuttle) or via telephone link up if any of the parties are in a remote location. We do attend some country areas to hold Conferences.
If an agreement is reached at a conference then a solicitor can prepare Heads of Agreement or Consent Minutes of Order which can be filed at the Court. It is also possible for the parties to attend a Review Conference at a later stage to allow the parties to ‘trial’ the agreement and make changes which may be needed.
After the Conference the chairperson will make recommendations to the Commission whether Legal Aid should continue. This is based on the merits test – reasonable chance of success in Court.
Cost of attending a Conference
If a party has a grant of Legal Aid then they will have to pay a contribution towards their legal fees. The amount depends on their financial circumstances.
If the party has Legal Aid and they own real estate and the legal fees exceed $2250 then the Commission can register a charge over the property (statutory charge) and require repayment of the amount of legal costs when the property is sold or if the person refinances.
If a party does not have Legal Aid they will have to pay their own solicitor costs to attend the Conference.
For more information, see our Family Law Conferencing Brochure, speak to you lawyer or contact the FDR Unit via email to FDRsecretary[at]lsc.sa.gov.au or telephone (08) 8111 5534.