Family dispute resolution

Among the objectives of the 2006 amendments to the Family Law Act 1975 (Cth) (FLA) and the Family Court Act 1997 (WA) (FCA) were the discouragement of adversarial approaches to family dispute resolution (FDR) and the introduction of a national network of family relationship centres resourced with accredited FDR practitioners. Section 60I FLA and Section 66H FCA aim to ensure that all parties who have a dispute about Part VII FLA or Part 5 FCA (children) matters make a genuine effort to resolve the dispute by FDR before applying for an order under the Part. FDR can be provided through the 65 Family Relationship Centres, other government funded organisations, Legal Aid Commissions and private services.

A court must not hear an application under Part VII FLA or Part 5 FCA unless the applicant has either filed and served a certificate by an FDR practitioner (certifying that the parties have attended or attempted to attend FDR (s.60I(7) FLA; s.66H(7) FCA) and the FCFCA Fact Sheet) or have attended upon a Registrar and obtained an exemption from attending FDR (s.60I(9) FLA; s.66H(9) FCA) on the basis that there are reasonable grounds to believe that there has been or that there is a risk of family violence or child abuse by one of the parties to the proceedings; or the application relates to the contravention of an order made under this part in the previous 12 months; or there are circumstances of urgency or impracticality. The Family Violence Best Practice Principles make it clear that it is not compulsory for parties to participate in FDR in these circumstances. Where family violence issues are not identified in the FDR intake process, but become apparent in the course of the negotiations, a certificate may be issued by an FDR practitioner under Section 60I FLA or Section 66H FCA certifying that it would be inappropriate to continue. It is important to note that the assessment of the suitability of parties to attend dispute resolution at any stage, has not changed as a result of the merger of the Courts and the implementation of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (FCFCOA Rules) (Sch 1 Part 1 cl 1(8) and Sch 2 Part 1 cl 1(8)) and the Central Practice Direction Family Law - Case Management 2021 (Central Practice Direction). However, it appears from the pre-action procedures that in the event FDR is not appropriate, for whatever reason, a written notice of an intention to start a proceeding must be given to the other party prior to the filing of an application to the Court (FCFCOA Rules Sch 1 Part 1 cl 3(4) and Sch 1 Part 2 cl 3(4)).

Where a FDR practitioner assesses it safe to do so, a matter involving family violence may proceed to FDR. The specific model of FDR utilised (for example, telephone, skype, online, shuttle, legally-assisted) will be dependent on the circumstances, complexities and needs of individual families.

Any communications made to an FDR practitioner during FDR are confidential unless disclosure is required or authorised by law (Section 10H FLA or Section 53 FCA). Such communications made in FDR are also not admissible in any court or proceedings in any jurisdiction (Section 10J FLA or Section 54 FCA). Additionally, a communication made when a professional consultation is being carried out, on referral from an FDR practitioner, is inadmissible in any court or proceedings in any jurisdiction. However, an admission or disclosure that indicates that a child under 18 has been abused, or is at risk of abuse, may be admitted as evidence unless there is sufficient evidence of the admission or disclosure available to the court from other sources.

Under Section 13C FLA or Section 65K FCA, a judge may also refer parties back to FDR, family counselling, a course, program or service at any stage of the family law proceedings but before doing so must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (Section 11E FLA or Section 64 FCA).

With the introduction of the FCFCA Rules and the Central Practice Direction,there has been an increased focus on the importance of and reliance on dispute resolution and Family Dispute Resolution (FDR). "Dispute Resolution" is defined in the FCFCOA Rules to include a mediation and conference (r. 105). One of 10 the core principles underpinning the family law jurisdiction and designed to facilitate the resolution of family law matters is the importance of dispute resolution. In the Central Practice Direction this is described as follows:

  1. The Court encourages the use of dispute resolution procedures;
  2. Before commencing actions, parties are expected to make a genuine attempt to resolve the dispute including by complying with requirements and obligations of Section 60I of the FLA and the preaction procedures set out in the FCFCOA Rules;
  3. After commencement of an action, parties are expected to:
    1. Be proactive and identify the appropriate time and appropriate way in which they can participate in dispute resolution; and
    2. Be prepared to make and consider reasonable offers of settlement at any stage. Failure to do so may have a cost consequence.

It is also important to note that another of the 10 core principles is assessment of risk. This includes the prioritisation of the safety of children, vulnerable parties and litigants as well as the identification and appropriate handling of issues of risk including alleged family violence. As a result, participation in family dispute resolution and dispute resolution more broadly needs to be considered in this context.

The Central Practice Direction also includes consideration after any interim hearings, as to whether dispute resolution is appropriate and whether measures can be implemented to ensure safety in matters involving family violence and safety concerns. This includes parties being referred off to private mediation, private or community based Family Dispute Resolution, and/or arbitration with the consent of the parties. If the Court is satisfied that it is appropriate for the parties to participate in dispute resolution, the matter will be listed for a date within 6 months of filing for a Conciliation Conference, a Judicial Settlement Conference or a Family Dispute Conference. The Central Practice Directions also note that a second or subsequent dispute resolution may be listed at any time if it appears to the Court that it is reasonably likely this will assist with the resolution or narrowing of the dispute.

There are additional requirements included in the FCFCOA Rules and the Central Practice Direction that parties provide a detailed list of documents to the Mediator or FDR Practitioner and to the other party involved not less than 7 days before the mediation/FDR. These include the following:

  1. All relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;
  2. Any relevant expert reports;
  3. A Balance Sheet setting out agreed and disputed assets and liabilities;
  4. Any documents exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
  5. A Minute setting out the precise terms of orders required to give effect to the settlement proposal;
  6. A confidential case outline document in the approved form;
  7. Particulars of any financial resource and a valuation of any asset the value of which is in dispute;
  8. Valuations or market appraisals for any parcel of real estate in which any party has an interest, or any motor vehicle in which the value is not agreed;
  9. Valuation of any superannuation interests and written confirmation that the superannuation trustee of any fund that may be subject to a splitting order has been afforded procedural fairness;
  10. Any family violence orders currently in place; and
  11. Any other documents reasonably requested by the mediator/FDRP.

Research by the Australian Institute of Family Studies (AIFS) in 2015 suggests that parties, and perhaps other professionals involved in the FDR process, may not have a thorough understanding of the 60I/66H exemption. This research shows that some parents who experience family violence continue to present for FDR services, although many who experience family violence proceed directly to the Court without attending or attempting to attend FDR. This research found there was a significant reluctance by parties to disclose family violence issues in the FDR process, and a low 60I/66H exemption rate where family violence issues are disclosed. A separate AIFS study shows that among those parents who used FDR services as a means of resolving parenting issues, substantial proportions of parents reported having experienced physical violence or emotional abuse.

Another Australian study reported that women were more likely than men not to disclose family violence and twice as likely as men to report that FDR proceeded notwithstanding a disclosure of family violence. Central to disclosure is what Chisholm has called the victim’s dilemma: a victim’s choice of balancing the risk to the child of not taking protective action to prevent further family violence, against the risk to the child of doing so unsuccessfully due to, for example, insufficient evidence, with the possible result that the child spends more time with the perpetrator.

The critical question remains in each case, however, as to whether FDR or other mediated or facilitated negotiation processes are appropriate or effective where there is a history of family violence between parties attempting to reach agreement as to parenting arrangements. AIFS has observed in its research that in some circumstances, the process may be empowering for the victim; in other circumstances, the process may cause the victim further fear and trauma, making the victim more vulnerable to the impacts of ongoing power imbalances with the perpetrator, and may produce coerced outcomes that may not be in the best interests of the child. Overall, fewer parents reach agreement using FDR processes where family violence issues exist, and many are unable to reach agreement. For those who do reach agreement, there is evidence that the consequent parenting arrangements may be unstable due to unresolved and ongoing family violence issues and safety concerns, and as a result, these families are likely to need additional support. There is an acknowledged need for constant vigilance by FDR practitioners in recognising and assessing a party’s fear and safety concerns prior to the commencement and throughout the course of the FDR process and, where necessary, issuing a 60I/66H certificate.

If parties reach agreement through FDR they may wish to apply to the Court for consent orders. Where an application is made to the FCFCA for a parenting order by consent (whether or not resulting from an outcome mediated through FDR), the parties must formally advise the Court whether any allegations of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol misuse, serious parental incapacity or any other allegation involving a risk to the child concerned have been made AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that he or she or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of FCFCA Rules).