FDR & ADR in Australia: Resolving Custody Out of Court

In Australia, more than 95 percent of parents at odds over their child manage to avoid court.

Some of these families reach an agreement on their own. The others turn to alternative dispute resolution (ADR) options, in which a professional helps parents sort out differences.

ADR methods are preferred over court litigation, especially where children are involved, because:

• They are less expensive than court proceedings, which can cost each parent hundreds of thousands of dollars.
• They resolve issues quickly, compared to the multiple years the court process can take.
• They can be much less stressful and traumatic for the parents and child.

Methods other than arbitration have added benefits:

• They let parents decide the outcome.
• They aim to improve communication between parents.

If you reach an agreement via ADR, it's written into a parenting plan for your reference. To turn the plan into a consent order — a court order reached by agreement — you may face additional costs.

Alternative dispute resolution requirements across Australia

The courts require you to try an ADR method (other than arbitration) before they will decide parenting issues for you.

When you apply for a parenting order, you turn in paperwork confirming your attempt or that ADR would not be appropriate due to domestic violence. The so-called 60I certificate must be signed by an accredited family dispute resolution practitioner (FDRP), so always use an accredited professional.

The certificate will not include details of your negotiations. However, it will note if a parent refused to attend or participate genuinely. A 60I certificate that cites your lack of involvement does not look good in court.

If you do not file a 60I certificate with your order application, the courts will send you to family dispute resolution (more below) before they hear your case. However, you may receive an exemption if your case is urgent or involves domestic violence.

Family Relationships Online, a government organisation, can help you navigate ADR requirements.

Alternative dispute resolution methods

These are the most common forms of ADR for family matters in Australia.

1. Family dispute resolution (mediation)

Family dispute resolution (FDR) is child-focussed mediation that helps parents find middle ground.

Meetings are led by neutral FDRPs, who are experts in untangling family disputes but cannot give legal advice or impose decisions. They simply present options and help parents see each other's viewpoints.

Your practitioner will structure FDR according to your situation. For example, they may offer shuttle mediation, where parents sit in separate rooms. Parents' lawyers, children and other close family members may or may not be present.

Typically, each parent gives the FDRP an opening statement of a few minutes. Then they spend the rest of the meeting talking directly to each other with guidance from the FDRP. Often, parents need more than one session to reach full agreement.

Anything said in mediation is confidential — unless there's a threat to a person or property — and cannot be used in court.

Generally, parents may select any accredited FDR practitioner together. However, if a judicial officer (such as a judge) orders court-based FDR, you're assigned a court employee (a registrar, family consultant or both) to lead the discussion.

Court-based FDR is free. Family Relationship Centres also offer one free hour of FDR to all parents in Australia. Families making less than $50,000 a year can get a second and third hour free, while other families pay $30 an hour at that point.

Private practitioners generally cost between $1,000 and $5,000 in total, usually split equally by parents.

If you are facing financial hardship, legal aid can cover the costs of family dispute resolution. Some legal aid organisations offer a form of FDR called family law conferencing, in which both parents' lawyers must participate.

2. Collaborative law

Collaborative law is similar to FDR but offers extra support and structure.

An FDRP chairs collaborative meetings, and each parent brings their own lawyer, who takes a non-confrontational approach to finding commonality with the other side. Sometimes other neutral professionals get involved, such as financial advisers or child specialists.

Before beginning collaboration, both parents sign a commitment to avoid court. If the parents ultimately give up on the process and go to court, they must find different lawyers and cannot use information learned during collaborative meetings.

Typically, parents need four to six collaborative meetings, which are each up to two hours long.

As a result of this thoroughness and the various people involved, collaborative practice can cost each parent thousands more than mediation. Still, Australian families are increasingly turning to collaboration because of its focus on teamwork and transparency.

3. Parenting coordination

Parenting coordination focusses on helping parents stick to a parenting plan they have agreed to or a family court order.

The parenting coordinator (PC) can make minor decisions for parents when conflict occurs, as long as the coordinator has permission from both parents (and from the court, when a court order has been issued).

PCs are family dispute experts (normally FDR practitioners, lawyers or social workers) with training in strategies for co-parenting, anger management and more.

Parents can enter parenting coordination voluntarily. Parents can also be ordered to coordination by a court, in which case the PC reports to the court on what happens during sessions.

Generally, parents work with one PC for months or years, either meeting regularly or as issues arise.

Hourly rates for a coordinator range from $40 to $200 per parent, based on your incomes. Parents normally split the costs equally, but the court may order a different distribution.

4. Arbitration

In arbitration, both parents agree to be bound by what the arbitrator decides. It is particularly useful when one or two issues are holding up proceedings, especially in FDR or collaborative law.

Arbitrators have generally practiced family law for at least five years plus had specialised training. Make sure to use an accredited arbitrator.

While other ADR processes can spread over months, arbitration does not normally go more than a few days. It is similar to a trial but less formal. Parents often have lawyers represent them.

Arbitrators cost anywhere from $3,000 to $12,000 per day. Parents usually split this equally.

You will not receive a 60I certificate for this method of ADR if you need to go to court because arbitration does not prove that have you tried to compromise with the other parent.

Preparing for an alternative dispute resolution session

Preparation is as important when you decide parenting arrangements through an alternative method as when you decide them in a courtroom. You still want to present convincing information — but to the other parent or the arbitrator rather than to the court.

Conflict coaching can help you prepare.

It's also wise to draft a parenting plan and more than one parenting schedule you can present to demonstrate your thoughts convincingly.

Then get documents ready that support your requests, such as a parenting journal or a list of child-related expenses.

The Custody X Change co-parenting app enables you to prepare all these items in one place.

With a parenting plan template, customisable custody calendars, a parenting journal, an expense tracker and beyond, Custody X Change makes sure you're prepared for any method of deciding your parenting arrangements. It makes sure you're prepared to get what's best for your child.