Last updated 5 September 2016
The Family Law Act 1975 (Cth) (Family Law Act) now compels separated parents with children to make a genuine effort to resolve that dispute by family dispute resolution before applying to the courts for an order (s 60I(1) Family Law Act). Parties must:
- participate in negotiations, conciliation, mediation, arbitration or counselling
- comply with their duty of disclosing relevant facts, reports and concerns.
Family relationship centres are dispute resolution forums, and their purpose is to give separating parents a place to go to discuss the needs of their children and agree on parenting arrangements without going to court. Dispute resolution practitioners are independent of all the parties (s 10F Family Law Act). The centres provide information, advice, dispute resolution and other relevant services. They do not provide legal advice.
The first hour of dispute resolution is provided free of charge (or low cost) to give parties the opportunity to come up with a parenting plan. Further dispute resolution assistance and other services are provided either free of charge or at a cost that is determined by each centre and usually based on the client’s income. A national Family Relationship Advice Line exists to offer both legal and non-legal advice.
A family dispute resolution practitioner is a person who is (pursuant to the Family Law Act):
- accredited as a family dispute resolution practitioner under the Accreditation Rules (s 10A)
- authorised to act on behalf of an organisation designated by the Minister for Families, Community Services and Indigenous Affairs (s 10C(1)(b))
- a Family Court counsellor and mediator
- engaged to act as a family dispute resolution practitioner by s 93D of the Federal Circuit of Australia Court Act 1999 (Cth)
- authorised by a Family Court to act as a family dispute resolution practitioner.
Communications with a family dispute resolution practitioner are confidential (s 10H Family Law Act), though there are some exceptions to this, such as where consent is provided that disclosure is necessary:
- to protect a child on the reasonable belief of the practitioner
- to prevent or lessen a serious and imminent threat to life, health or the property of a person
- to report or prevent an offence involving violence or a threat of violence
- to assist the independent children’s lawyer in their role
- to provide an s 60I Family Law Act certificate.
Admissions or disclosures of child abuse or risk of child abuse should be disclosed by the practitioner if there is no other source of the information, but generally the communications cannot be used in court (s 10J Family Law Act).
Parties are required to have attended a dispute resolution program and obtained the requisite certificate from a family dispute resolution practitioner before bringing most applications for parenting orders (the certificate needs to be attached to the initiating application). It should be noted that non-compliance with these provisions does not affect the validity of the proceeding or any orders made (s 60I(11) Family Law Act).
There are exceptions to the requirement to attend family dispute resolution before filing an application (s 60I(9) Family Law Act):
- the application is made by consent
- the application is in response to an application another party has made under pt VII
- the court is satisfied, on reasonable grounds, that there has been or there is risk of abuse of a child by one of the parties, or there has been or there is a risk of family violence by one of the parties
- the application relates to contravention, and there are reasonable grounds to believe that the respondent has shown a serious disregard for their obligations under the order
- the application is urgent
- one or more of the parties are unable to participate effectively in family dispute resolution (including for reasons associated with remoteness)
- by reason of any other circumstance set out in the Family Law Act.
Family counselling and counsellors
Family counselling is a process in which a family counsellor helps (s 10B Family Law Act):
- persons to deal with personal and interpersonal issues in relation to marriage and issues relating to the care of children
- children who are affected or likely to be affected by separation or divorce to deal with personal and interpersonal issues.
The term ‘family counsellor’ (s 10C Family Law Act) applies to the following strictly limited persons who are:
- accredited as a family counsellor under the Accreditation Rules (s 10A Family Law Act)
- authorised to act on behalf of an organisation designated by the Minister for Families, Community Services and Indigenous Affairs (a list of organisations designated for this purpose is published annually)
- authorised to act as a family counsellor (i.e. Family Court counsellors) (s 38BD Family Law Act)
- engaged to act as a family counsellor under the Federal Circuit Court of Australia Act 1999 (Cth)
- authorised by a state Family Court to act as a family counsellor.
Communications with a family counsellor are confidential, but there are similar exceptions to those set out above in relation to family dispute resolution practitioners (s 10D Family Law Act), and communications cannot be used in court as a general rule (s 10E Family Law Act). However, s 10E(2) of the Family Law Act specifically provides that the confidentiality does not apply to admissions by an adult that a child under 18 has been or is at risk of abuse (or such a disclosure by the child), unless there is sufficient evidence of the admission or disclosure available from other sources.
It should be noted that for a significant period of time, the family law courts have not provided the services of court counsellors.
Family consultants are distinct from family counsellors and family dispute resolution practitioners. They may have significant involvement in the proceedings if disputes cannot be resolved and the matter proceeds to the court for determination. Family consultants prepare family reports ordered by the court or requested by the parties during the course of proceedings.
Family consultants are often present in the courtroom and may give, on oath, evidence of their observations of the parties. Their assessments may occur after only brief consultation with the parties, but can involve more in-depth interviews with the parties and the children. It can also involve consideration of the material filed and any documentation produced under subpoena.
The primary function of a family consultant is to provide services in relation to proceedings under the Family Law Act (s 11A) including:
- assisting and advising people involved in the proceedings
- assisting and advising the court and giving evidence
- helping the parties to resolve disputes regarding the child’s time with each parent
- reporting to the court under ss 55A (report concerning the arrangements for children for the purposes of a divorce application) and 62G (family report)
- advising the court about appropriate programs and services to which the court can refer the parties.
The communications with a family consultant are not confidential, although there is an exception when the family consultant acts as a family counsellor or family dispute resolution practitioner if authorised to do so under s 38BD of the Family Law Act. It is important for a party to understand the role being played by the family consultant in those circumstances. In general, evidence of anything said to, by or in the company of the family consultant is admissible in proceedings (s 11C Family Law Act), and, in performing their functions, the family consultant has the same protection and immunity as a judge of the Family Court (s 11D Family Law Act).
Family reports are often available to assist the court determining interim and final parenting arrangements. The types of matters the report writer will usually consider in their report include:
- the attitude of each party to parenting
- the relationship between the parents
- the relationship between each of the parents and the child
- the relationship between the child and any other relevant adult (e.g. a de facto spouse)
- the needs and attachments of the child (this is often the way in which the court receives evidence of the wishes of the child).
A report prepared by a family consultant may be received into evidence pursuant to s 62G(8) of the Family Law Act, and when otherwise prepared by an expert, a family report can be admitted as evidence in the proceedings and form part of the information used by the court to determine parenting orders (s 79 Evidence Act 1995 (Cth)). It is common for family reports to be given to the court both orally and by way of a written report. The report writer will usually be available for cross-examination at a final hearing (not at an interim hearing).
Obligations on legal practitioners
- legal and possible social effects of proceedings (including consequences for children)
- the role of family counsellors, family consultants, family dispute resolution practitioners and arbitrators
- the steps involved in the proceedings.
Obligations on advisers
Advisers include legal practitioners, family counsellors, family dispute resolution practitioners and family consultants (ss 60D(2), 63DA(5) Family Law Act).
Pursuant to s 60D of the Family Law Act, advisers who give advice or assistance to a person about matters concerning a child in relation to the Family Law Act are required to encourage that person to consider their child’s best interests as paramount and, where that child is at risk of harm, to advise that this should be given greater weight than the benefit of a meaningful relationship with both the child’s parents.
Advisers are required to inform clients that they could consider entering into a parenting plan and provide them with information about where they can get assistance to do so. There are many aspects about the use of a parenting plan that need to be discussed with the client. These are set out in detail in s 63DA of the Family Law Act and include:
- the option of arrangements being made that provide for the child to spend equal time or substantial and significant time with each of the parents, if those arrangements are reasonably practicable and in the best interests of the child
- parental responsibility and how disputes can be resolved
- if there is an existing order, it may include a provision that the order is subject to the parenting plan they enter into
- future variations to the parenting plan
- the availability of programs to help with compliance with the parenting plan
- information regarding the fact that a court would take into consideration the terms of a parenting plan when making a parenting order (s 65DAB Family Law Act).
Advisers are not required to give advice as to whether the option is appropriate in the circumstances.
Obligations on the court
Part IIIB of the Family Law Act imposes obligations on the court to help accommodate any possible reconciliations and to refer parties to family counselling, family dispute resolution or to arbitration.
The objects set out in s 13A of the Family Law Act, clearly reflect the Federal Parliament’s desire to encourage reconciliation and alternative dispute resolution, and to discourage the use of the courts to resolve family law disputes.