Consultation Paper on Alternative Dispute Resolution - Law Reform ...

(i) Phasing in Mandatory Mediation
5.94 In 2006 the Australian Government instituted a major transformation
of the family law system. It included the phasing in of mandatory mediation for
separating couples through significant amendments to the Family Law Act 1975
by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The
2006 Act places increased emphasis on using mediation to resolve family law
disputes.
(ii) Family Dispute Resolution
5.95 Section 10F of the Family Law Act 1975 as amended by the Family
Law Amendment (Shared Parental Responsibility) Act 2006, defines a family
dispute resolution as a process (other than a judicial process):
(a) in which a family dispute resolution practitioner helps people
affected, or likely to be affected, by separation or divorce to
resolve some or all of their disputes with each other; and
(b) in which the practitioner is independent of all of the parties
involved in the process.
5.96 It is clear, therefore, that this includes mediation and conciliation. The
family dispute resolution practitioner must be accredited under the accreditation
rules set out in Act. 115 Parents are able to attend family dispute resolution
services at a range of services including Family Relationship Centres, or at any
other community, private or government-funded service (such as legal aid
commissions, community justice centres or community legal centres) that have
accredited family dispute resolution practitioners.
5.97 From July 2007, parents must attend family dispute resolution and
make a genuine effort to resolve the dispute before applying for a Parenting
Order through the Family Court of Australia or Federal Magistrates Court. The
courts must not hear an application for a Parenting Order unless the applicant
files a certificate from a family dispute resolution practitioner. 116 This
requirement does not apply where there is family violence or abuse or the risk
of family violence or abuse.
5.98 A family dispute practitioner may give those attending dispute
resolution one of the following certificates:
A certificate stating that the party did not attend dispute resolution as a
result of the refusal or failure of other parties to the proceedings to
attend;
115 Section 10G(1) of the 1975 Act as amended by the 2006 Act.
116 Section 60I(8) of the 1975 Act as amended by the 2006 Act.
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