All in the family: Dispute Resolution

Date: Nov 01, 2009
Document Type: Newsletter

Family dispute resolution involves people affected by separation and family breakdown. Dispute resolution is about coming together to talk about differences and trying reach agreements. This can be conducted with all family members present or separately.

Family Dispute Resolution – When to Use it

Family dispute resolution can be used if it involves:

  • not wanting to go to court;
  • before, during or after a family law case goes to court;
  • children's matters; and
  • property matters.

Where children are involved, the aim of the family dispute resolution is to reach an agreement about what is in the child's best interests (primary and secondary).

When to Go

Everyone applying for a parenting order will need to go before starting their case in any court which has the power to make orders under the Family Law Act. The exceptions are outlined in the Family Law Act, such as seeking a consent order (where both parties have made an agreement), breaking a current court order, urgency where a child is missing, incapacity of any party involved, family violence, etc. A court must still look at making an order that the parties go to family dispute resolution.

 

Who is Involved

The family members, their lawyers and a practitioner independent of each person are involved in the dispute. The practitioner usually works on their own or at a Family Relationship Centre.

The Advantages

Family dispute resolutions:

  • are usually quicker;
  • allow you to make your own decisions;
  • allow you settle disputes in your own time;
  • facilitates improved communication with ex-partners about parenting and other issues;
  • may be less stressful;
  • may be less expensive.

 

Family dispute resolution may not be right for everyone, for example where there is family violence, child abuse or any risks that these will happen, or if equal decisions cannot be made because one party feels unsafe or intimidated. Special arrangements may be made. It is always advised to inform your lawyer about these issues.

Confidentiality

Anything said during family dispute resolution is confidential. The information cannot be given to anyone without permission (if those involved are over 18 years old). For those under 18, parental consent is needed for the information to be given out. If they cannot agree, the court may have to decide.

The only exception is that the family dispute resolution practitioner must provide information that was said to them if they believe that it is necessary to follow the rules of any law. For example, if a child is abused or at risk of abuse, the law states the practitioner must inform a child protection agency or the police.

A family dispute resolution practitioner may (but does not have to) give information to the court if they believe that to do so:

  • is necessary to protect a child from harm (both physical and psychological);
  • is necessary to protect someone's life or health or property;
  • may prevent a crime involving violence or threats of violence or report a crime;
  • involving threats or violence;
  • will assist a lawyer independently representing a child's interests.

 

Even if the family dispute resolution practitioner is allowed to tell the court due to one of the circumstances above, this does not mean that the information will necessarily be admissible (allowed to be used) in court.

 

After the Agreement

Agreements reached at family dispute resolutions are not binding and therefore not legally enforceable. They can be made into legal orders, such as parenting orders or consent orders. The court may recognise these orders, especially if they conflict with a parenting plan.

It is advised to consult your lawyer before family dispute resolution to know your rights and responsibilities.

Family law is a very situational-based and dynamic area of law. It is advised to speak to your lawyer at any time.

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