Most separating parents can arrange between themselves where their children will live and other parenting issues without taking the matter to the Federal Circuit and Family Court of Australia. Solutions reached in this way usually suit everybody better than a decision imposed by the Court. Court can also be more expensive, time consuming and stressful than reaching agreement together.

Everyone applying to the Court for a parenting order must attend, or attempt to participate in, family dispute resolution, unless an exception exists under s 60I(9) of the Family Law Act 1975 (Cth).

Section 60I certificate

An application to the Court for a parenting order must include a certificate issued by a family dispute resolution practitioner [s 60I(7), (8)]. The certificate will say one of the following:

A certificate from a family dispute resolution practitioner is not required where [s 60I(9)]:

Once proceedings have started, the Court must still consider ordering the parties to attend family dispute resolution even if a party can prove one of the above exceptions applies to them.

Dispute resolution is about people coming together to talk about their differences and trying to reach agreement. This can happen with all the people involved talking in the same room, or it may be able to happen separately if people do not wish to see each other. Where children are involved, the aim of family dispute resolution is to reach an agreement about what is in the best interests of the children.

Options for family dispute resolution

For a list of family dispute resolution services in South Australia, see the Family Dispute Resolution Provider Register maintained by the Commonwealth Attorney-General's Department. Agreements reached may then be made into parenting plans or consent orders.

The Legal Services Commission provides legally assisted family dispute resolution, called conferencing, through its Family Dispute Resolution Unit. To use this service, at least one party must be eligible for legal aid for conferencing. Usually, both parents and their lawyers are present. Agreements reached may then be made into consent orders. To find out more, see our Family Law Conferencing pamphlet.

If you are not eligible for legal aid, you can go to a Family Relationship Centre or other family dispute resolution provider as outlined above.

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. For more information see amica – Assistance reaching and recording agreements, or visit the amica website.

Who can provide a Family Dispute Resolution certificate?

Only registered Family Dispute Resolution Practitioners can provide certificates establishing whether or not dispute resolution has been attempted. Whilst there are many services that can provide family dispute resolution such as mediation and counselling, not all are registered practitioners. The main agencies which provide these services, such as the Family Relationships Centres, Relationships Australia, Anglicare and Centacare, are registered. See the online Family Dispute Resolution Provider Register.

While an invitation to negotiate through amica may result in a formal 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.

What happens if parents agree about the children?

There is no need for the Court to ratify decisions or make formal orders if parents agree. Agreements can be verbal, but parents are encouraged to prepare written parenting plans to help avoid disputes about arrangements for children. Family dispute resolution services or amica can assist with preparing parenting plans.

Is family dispute resolution right for every situation?

Family dispute resolution may not be suitable for every situation. Family dispute resolution is not recommended:

Is family dispute resolution confidential?

What is said during family dispute resolution sessions is usually confidential and not admissible in court. However, a family dispute resolution practitioner may (but does not have to) give information to the Court if they believe it:

Are parenting plans legally binding?

Without being filed in the Court as consent orders, parenting plans have no legal force. However, if the parties are later before the Court, the Court will consider the terms of the latest parenting plan. After reaching an agreement, some people prefer to apply to the Court for a binding order. This can be done by preparing a consent order. The Court has an Application for Consent Order Kit but parties should get independent legal advice first.

Can a party still apply to the Court for orders after agreeing to a parenting plan?

Yes, a party can still apply to the Court for parenting orders. However, the first stage of the process for all applicants will still involve attending family dispute resolution and/or obtaining a section 60I certificate, as outlined above. Although not legally binding, the Court will also consider the terms of the latest parenting plan.

What if the parties want to change orders?

If both parents agree on how orders should be changed, then they can:

Where only one parent seeks a variation, an application must be made to the Court with evidence to justify the variation. Usually there needs to be a significant change in circumstances, and the first stage of the process will still involve attending family dispute resolution and/or obtaining a section 60I certificate as outlined above.