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Coming to an agreement

Most separating parents are able to decide between themselves where the 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 battles over children are often very bitter, drawn out and expensive.

Drawn out and acrimonious proceedings resulting in a court decision that appears to leave one side the winner and the other the loser may increase the bitterness between the parties. This can be avoided if the parents are able to agree, without the intervention of the Court, about the most satisfactory living and other arrangements for the children.

In any event, everyone applying to the Court for a parenting order must attend, or attempt to participate in, family dispute resolution — unless their situation fits one of the exceptions set out in subsection 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)]. The certificate will say one or other of the following:

  • that the applicant did not attend family dispute resolution but that their failure to do so was due to the refusal or failure of the other party to attend
  • that the applicant did not attend family dispute resolution because, in the opinion of the practitioner, it would not be appropriate for them to do so
  • that the applicant attended family dispute resolution and all attendees made a genuine effort to resolve the issues in dispute, or
  • that the applicant attended family dispute resolution but that either they or the other party did not make a genuine effort to participate

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

  • any of the people involved applied before 1 July 2007 for a parenting order for that particular child or children
  • the applicant is seeking a consent order (an order where both people have made an agreement)
  • the application is in response to an application made by another person
  • the situation is urgent, for example a child has not been returned or is missing
  • one or more of the people involved cannot go to family dispute resolution because of ‘incapacity’ (which includes a person being unwell or living with a disability) or they live too far away from a family dispute resolution service
  • there are reasonable grounds to believe that there has been (or there is a risk of) abuse of the child or family violence
  • a court order made in the previous 12 months has been broken and the court finds that the person who broke it has shown a serious disregard for their obligations under the order

Once proceedings have begun, the Court must still look at making an order that the persons involved go to family dispute resolution even if a person 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. 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 (opens new window).

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?

Where an agreement has been reached there is no need for the Court to ratify the decision and no formal orders are required. Agreements can be verbal, but parents are encouraged to prepare parenting plans to help avoid disputes. Parenting plans are written agreements between parents regarding arrangements for a child. 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 right for every situation. Examples of instances in which family dispute resolution is not recommended are:

  • where there is family violence or child abuse, or a risk that these will happen
  • where one person cannot make decisions on an equal basis with the other because they feel intimidated or unsafe
  • in urgent situations, for example, if children have not been returned from a visit, or if one party thinks that the other might take or damage property that they are entitled to
  • where one person refuses to participate
  • where the ability of one of the parties to participate is affected by a mental illness or a drug or alcohol abuse problem

Is family dispute resolution confidential?

What is said during family dispute resolution sessions is normally 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 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.

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. Consent orders enable the parenting plan to become legally binding. The Court has a 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 make an application 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 it was 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:

  • Enter into a parenting plan in writing (unless the original orders say that any variation must involve the Court) [Family Law Act 1975 (Cth) s 64D]; or
  • Make an application to the Court for consent orders, unless the original orders say that any variation must involve the Court.

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 substantial 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.

Coming to an agreement  :  Last Revised: Thu May 19th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.