The Family Law Act 1975 (Cth) makes family dispute resolution (such as mediation or conferencing) compulsory before applying to the Court for parenting orders. As a result, family dispute resolution providers and practitioners play a major role in the family law system [s 60I].

In addition, the pre-action procedures set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Schedule 1 (for both parenting and property matters) require the party considering filing the application to (if it is safe to do so) invite the other party to participate in dispute resolution and make a genuine effort to resolve the dispute by participating in dispute resolution.

Dispute resolution may not be suitable, or required, in urgent situations, such as if there are immediate safety concerns for children withheld by one parent.

For more information about family dispute resolution, see:

For a list of providers in South Australia, see the Family Dispute Resolution Register maintained by the Commonwealth Attorney-General's Department.

Family dispute resolution is a voluntary process and works best when both sides are on an equal footing - it may not be suitable where there has been family violence or where arrangements are unable to be made to ensure both people feel safe. Mediation can happen with all the people involved talking in the same room, or separate rooms may be arranged if people do not wish to see each other. Sometimes, but not always, lawyers can be involved in mediation and this can help to keep both sides on an equal footing.

The role of a mediator or conference chairperson is to help the parties discuss issues, consider options and work out agreements that suit them both. Mediators do not give advice so it is important to get legal advice before going to mediation.

A mediated agreement may be registered with the Court to make it legally binding. This can be done using the Federal Circuit and Family Court Consent Order Kit. It is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.

Once Court proceedings have commenced, the Court can order that parties participate in further family dispute resolution [Family Law Act 1975 (Cth) s 13C(1)(b)]. Pursuant to the Central Practice Direction - Family Law Case Management, from 1 September 2021 the Court anticipates such further dispute resolution will take place within 5 months of the start of the proceedings [see item 5.26]. This may be private, community-based, legal aid facilitated or court-based [item 5.28].

All forms of dispute resolution, including mediation and conference, whether court-based or external, are confidential and evidence from them cannot be used in the Court proceedings [Evidence Act 1995 (Cth) s 131]. However, a certificate may be placed on the Court file as to whether the matter was resolved, in full or in part or not at all, and whether any of the parties failed to attend or make a genuine effort to resolve the issues in dispute [item 5.30].

Legal aid facilitated dispute resolution

The Legal Services Commission of South Australia offer lawyer-assisted dispute resolution where one of the parties is eligible for legal aid. A similar service is offered by legal aid commissions in other states and territories.

Court-based family dispute resolution

Where appropriate, court-based dispute resolution will take the form of:

The parties are expected to engage in good faith negotiations and make a genuine effort to resolve all issues in dispute or reduce the areas of dispute and record all agreements reached in writing [item 5.31].

The Court has a factsheet available on Court-based Family Dispute Resolution.

amica

National Legal Aid has developed an online service that helps separating couples reach agreement themselves about parenting and property issues. This low-cost service allows parties to reach and record agreements on a trusted secure online platform. While an invitation to negotiate through amica may result in a resolution, if it does not work out, participation through amica does not qualify as family dispute resolution for the purposes of obtaining a s 60I certificate. A section 60I certificate is required before filing an application with the Court in parenting matters, see Arrangements for children - Coming to an agreement. For more information about amica, see amica – Assistance reaching and recording agreements or visit the amica website (opens new window).