If you have a family law dispute that you need to resolve, then you may be scared about the prospect of going to court. The good news is that, depending on your matter, you may be able to avoid this stressful process entirely.
In fact, the Family Law Act 1975 requires that unless there are circumstances of urgency or it is not appropriate for family dispute resolution to take place (e.g. because of domestic or family violence) parents must attempt to resolve their family law issues with a Family Dispute Resolution Practitioner before they can commence court proceedings.
If this process is effective and an agreement is reached, then there’s no need to go to court at all – even for final Orders to be made.
What is Family Dispute Resolution?
If you’re looking to resolve a parenting matter with your partner, you’ll learn very quickly from talking to anyone who works in family law that participating (or at least attempting to participate) in Family Dispute Resolution is compulsory before you commence court proceedings. This is particularly the case if you’d like the court to issue a parenting order.
However, where there is a situation of urgency, where there is family violence child abuse or any substantive risk of harm to a child, those parties are exempt from first attending family dispute resolution and can make an application directly to the Court.
The family dispute resolution process involves a mediator, known as a Family Dispute Resolution Practitioner, whose aim is to assist you and your ex-partner to resolve some or all of your disputes with each other.
The role of the Family Dispute Resolution Practitioner is to support both parties and enable them to communicate openly about what is important for them in a transparent but confidential forum.
The Queensland Government operates a limited number of family dispute resolution centres throughout Queensland that are free – however, wait times tend to be greater.
There are also a number of private dispute resolution practitioners who charge higher fees for their services but are experts in their field and are often able to accommodate family dispute resolution sooner.
Why is Family Dispute Resolution Important?
The family dispute resolution process has a number of benefits for the participants, including:
- It is a more cost effective way to resolving a matter;
- The process facilitates co-operation between the parties and enhances the possibility of reaching a mutually beneficial outcome and/or ensuring that there is a positive and ongoing parenting relationship between the parties;
- The process creates a structure that allows any future disputes to be resolved more easily;
- Parties can maintain control over the decision-making process, rather than handing control to a judge or somebody who doesn’t fully understand your situation;
- It is less stressful and time consuming than litigation; and
- People are far more likely to stick to an agreement that they have had a say in, rather than an Order that has been made by a third party (such as a Judge).
What Happens in Family Dispute Resolution?
Unless someone expresses a desire to be in separate rooms, Family Dispute Resolution Practitioners often try to facilitate a discussion with both parties in the same room.
However, if this isn’t appropriate for your situation and you feel you cannot be in the same room as your ex-partner you can request that family dispute resolution be by way of ‘shuttle mediation’. This involves you and your partner sitting in different rooms and the Family Dispute Resolution Practitioner moving between these rooms. In all circumstances, the meeting will be led by the Family Dispute Resolution Practitioner, who will act as an independent third party.
The Family Dispute Resolution Practitioner will start the meeting by explaining the process of the session, ensuring that each party understands clearly what is expected and the potential outcome of the mediation.
They will then help to identify the issues that need to be resolved and encourage each party to listen to the other’s point of view.
Throughout the session, the main role of the Family Dispute Resolution Practitioner is to keep each person on track and focussed on the children.
Ideas and options will be shared with the aim of coming up with workable solutions that are in the best interests of the children.
The success of the process depends on whether the participants are willing to listen to the other party, consider their viewpoint and agree to maintain a child focussed approach.
During the process, everything you say to the Family Dispute Resolution Practitioner is confidential, but there are some exceptions, such as if you make a threat to someone else’s life or to your own life . Similarly, what is said cannot be used in court, except for limited circumstances, such as if the Family Dispute Resolution Practitioner needs to report child abuse or finds anything that indicates a child is at risk of abuse.
Ideally, at the end of your family dispute resolution session, you will have agreed on the arrangements for the children, which can later be documented by way of a Parenting Plan or Consent Order. You should always obtain legal advice prior to signing any formal document such as a Parenting Plan or a Consent Order, to make sure that you understand the effect and enforceability.
If the session is unsuccessful or one party refuses to participate in the process, the Family Dispute Resolution Practitioner can issue what is known as a ‘Section 60I Certificate”. This will allow either party to make an application to a family law court.
How Else Can I Resolve My Dispute?
If an agreement cannot be negotiated, either directly or via solicitors, and family dispute resolution has failed or is not an option, then depending on the nature of the relationship between you and your ex-partner and the nature of the dispute, you may wish to consider the collaborative law process.
The collaborative family law process involves a shared commitment by both parties to resolve a dispute without resorting to court action.
If you still have a good (or reasonable) relationship with your former partner, then you may find that collaborative family law is a useful approach. It involves informal discussions and joint meetings which aim to settle issues amicably.
These meetings are attended by a ‘collaborative team’ which includes the parties involved, their lawyers and any other relevant professionals. However, instead of being adversaries, this ‘collaborative team’ aims to work co-operatively to reach a solution.
Before proceedings begin, all parties and their lawyers must sign a contract to the effect that if their dispute is not resolved and one of them chooses to take the matter to court, then each party must retain new lawyers.
Although collaborative family law is more expensive than Family Dispute Resolution (because it is more bespoke), it is still cheaper than going to court and it often brings about high-quality outcomes for both parties.
If other dispute resolution processes fail, then you may find that litigation is the only available option.
By nature, it is the most confrontational dispute resolution process, and it does require you to attend court where a judge will make a decision for you. Litigation is generally adversarial, costly and delays are very common. As such, litigation should be used as a last resort, when all other options have been exhausted or are not appropriate in the circumstances.
Need Help With Your Family Law Matter? Get in Touch Today
If you have a family law matter that you’d like to resolve without going to court, please call us on (07) 3837 5500 or get started online today. Our trained, expert lawyers will be able to talk you through all of the available processes and we can advise you on which may be best suited to your requirements.