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Practice resource for out-of-home care agencies
Resolving contact disputes through alternative dispute resolution
This resource is for out-of-home-care agencies with case management responsibility for a child or young person where there is a contact dispute that cannot be resolved through casework.
Alternative dispute resolution is a process where an impartial person helps other people to resolve issues between them by reaching an agreement. From 29 October 2014, a framework governing alternative dispute resolution was included in Chapter 15A of the Children and Young Persons (Care and Protection) Act 1998.
Alternative dispute resolution is a broad term that covers all forms of nonjudicial dispute resolution processes such as mediation, conciliation, family group conferencing and court-ordered dispute resolution conferences (section 65). Refer to the Department of Family and Community Services (FACS) information sheet on alternative dispute resolution for further information.
A purpose-designed mediation service to resolve contact disputes is provided by Legal Aid NSW.
People who may be involved in alternative dispute resolution include birth parents, carers, a child or young person, significant people in the child or young person’s life, the FACS manager casework and/or their equivalent from an out-of-home care agency with case management responsibility with the delegated authority to consent to any agreement reached.
If a disagreement about contact arises after final orders are made that cannot be resolved through casework, alternative dispute resolution should be used.
Contact is unsuccessful whenever it is not considered in the best interests of the child or young person, or where no agreement can be reached on contact arrangements that are in their best interests. Sometimes it is the practical aspects of contact that can be difficult to negotiate. Alternative dispute resolution enables parties to discuss these issues and try and find solutions.
The Children’s Court will consider whether parties have attempted to resolve the dispute at alternative dispute resolution before it decides to grant leave to hear an application for a contact order (Sections 86(1A) (b) and (c) of the Care Act). For FACS and out-of-home care agencies with case management responsibility, all contact disputes must be referred to Legal Aid NSW for alternative dispute resolution.
The benefits of using Legal Aid’s alternative dispute resolution service to resolve contact disputes include:
- disputes can be resolved by agreement – research has shown that arrangements for children are more likely to work when the parties have been directly involved in the decision-making and have reached a mutual agreement. Arrangements entered into by agreement tend to be more robust and adaptive to change over time and less vulnerable to disruption due to conflict and misunderstandings.
- provides a forum to discuss a dispute without the need for court – Legal Aid’s alternative dispute resolution offers the opportunity for an agreement to be reached with the assistance of a children’s legal representative and a qualified mediator. Changes to the agreement are easier to negotiate if circumstances change, rather than having to return to the court to amend a court order. This is often a less adversarial approach and helps keep the focus on the best interests of the child or young person.
- children have legal representation – all children and young people have a legal representative at an alternative dispute resolution for contact disputes. The role of the Children’s Lawyer is to represent the child or young person’s best interests and to express their views.
- timely decision-making – alternative dispute resolution is often a simpler and faster process to resolve a dispute about contact than trying to obtain a court order to resolve the dispute. This allows for the matter to be resolved in a timely manner.
- may help foster positive relationships – Legal Aid’s alternative dispute resolution service provides the opportunity for people involved in a contact dispute to meet and discuss issues, with a view to reaching agreement. This can help to foster positive working relationships, which in turn is in the best interests of children.
Confidentiality is important in alternative dispute resolution because it promotes an open and honest discussion between the parties.
Section 244C of the Children and Young Persons (Care and Protection) Act 1998 says that any information provided in alternative dispute resolution must not be disclosed to anyone outside of the process.
The mediator may disclose information, however, if the person who gave the information consents to its disclosure, or to make a risk of significant harm report.
The mediator, or a person participating in the alternative dispute resolution process, may also disclose information to help prevent injury to a person or damage to property, or to make a complaint about the professional conduct of the mediator or a legal representative participating in the alternative dispute resolution to an appropriate body.
Although FACS and out-of-home care agency staff may not disclose information obtained in the mediation conference to a third party, caseworkers may make further inquiries as a result of what has been said or done at the conference.
For example, if during the process it is revealed that a child has required medical attention, the caseworker can later check if a report was made at the time, what outcome was reached, or they can ask for medical records. The results of these independent inquiries are not part of the alternative dispute resolution process and are therefore not captured by the confidentiality provisions governing alternative dispute resolution.
For a fact sheet on these provisions, please refer to the Children’s Court alternative dispute resolution confidentiality fact sheet.
Under the Safe Home for Life reforms, Legal Aid NSW has been funded to provide an alternative dispute resolution service for contact disputes that arise after final care orders have been made in relation to a child or young person. The model of alternative dispute resolution that Legal Aid will provide involves a combination of mediation and conciliation processes. Participants will not be charged for attending the service.
Out-of-home care agency and FACS caseworkers must refer all contact disputes that arise after final care orders, and which cannot be resolved through case work, to Legal Aid. Alternative dispute resolution should be attempted before consideration is given to making an application for a contact order in the Children’s Court.
Legal Aid will decide if a contact dispute is suitable to be resolved through alternative dispute resolution and will advise FACS or the relevant out-ofhome care agency. If Legal Aid decides that the matter is not suitable for alternative dispute resolution or if the parties refuse to participate in the process, consideration can be given to making an application for a contact order to Children’s Court. Legal Aid will appoint a mediator to facilitate the process and assist the parties to identify the issue
Out-of-home care agencies with case management responsibility can refer a contact dispute to Legal Aid for mediation directly and do not require permission from FACS, although they do need to advise FACS in writing of the referral. It is best practice to obtain the consent of each party before referring the matter to Legal Aid for mediation.
When making a referral, the agency must complete the Legal Aid Care and Protection Request For Mediation Form and attach copies of the following supporting documents where relevant and appropriate:
- the child or young person’s care plan
- current court orders
- any apprehended violence orders
- any section 82 and 76(4) reports in relation to the child or young person.
This information is provided to Legal Aid NSW under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998, for the purposes of assisting Legal Aid to provide its alternative dispute resolution service relating to the safety, welfare and wellbeing of the child or young person about whom there is a contact dispute. The completed request for mediation form should be emailed to Legal Aid at ADR@legalaid.nsw.gov.au and a copy should also be emailed to your local Child and Family District Unit.
Out-of-home care agency caseworkers must advise FACS when they make the referral for mediation to Legal Aid. They do this through their local Child and Family District Unit. They need to include the contact details of the relevant FACS officer on the Request For Mediation Form.
The Child and Family District Unit will organise for a FACS manager casework to attend the mediation conference with the out-of-home care agency representative. The manager casework may be from the local Child and Family District Unit or the Community Services Centre with the most recent case management responsibility. This will be determined at a District level. The manager casework attends because they have the appropriate level of delegation to agree to any contact arrangements made during the mediation conference.
In any discussions around contact, out-of-home care agency caseworkers must advise all parties that they may self-refer a disagreement about contact to Legal Aid.
If a contact dispute is referred to Legal Aid directly by a party or other agency, Legal Aid will contact the out-of-home care agency or caseworker directly. They will seek information or documents necessary for the mediation process. In these circumstances, the caseworker should first check with Legal Aid about which relevant supporting documentation Legal Aid already holds relevant to organising the alternative dispute resolution to resolve a contact dispute. The caseworker is able to provide additional information to Legal Aid NSW under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998, for the purposes of assisting Legal Aid to provide its alternative dispute resolution service relating to the safety, welfare and wellbeing of the child or young person about whom there is a contact dispute.
If Legal Aid does not know which FACS or out-of-home care agency or caseworker has case management responsibility, or if the child or young person has been placed under a guardianship order, Legal Aid will apply directly to the FACS Information Exchange Unit to seek the relevant information. FACS does not participate in the mediation conference for children or young people who are subject to guardianship orders, but may have some information which could assist Legal Aid in the mediation process.
Participation in Legal Aid’s alternative dispute resolution mediation service for contact disputes is voluntary. However, if a person involved in a contact dispute wishes to apply for a contact order in the Children’s Court, the Court will consider whether alternative dispute resolution has been attempted and may direct the applicant to participate in the process before it agrees to hear the application (section 86(1D)).
Caseworkers should ensure the people involved in any contact dispute know:
- they have the right to seek independent legal advice and may wish to refer themselves to the Legal Aid alternative dispute resolution service. Free advice and minor assistance from Legal Aid and Legal Aid care partners is available to all parties participating in mediation. Refer the party to their local Legal Aid office, local Legal Aid Care Partner, the Aboriginal Legal Service or to the Legal Aid Early Intervention Unit for further information
- they may bring a support person to the mediation conference, if approved by the mediator, but the role of the support person does not include advocating on behalf of the party
- they may be legally represented during the alternative dispute resolution process, but they must tell the mediator of their legal representation at the first possible opportunity
- children and young people will also be given an opportunity to express their views through the Children’s Lawyer and they can participate in the alternative dispute resolution if they want to, provided this is supported by the mediator after discussions with the child or young person and their lawyer.
Legal Aid has prepared a Care and Protection “Information about Care and Protection Mediation” fact sheet, which provides additional information about the process. If Legal Aid considers the contact dispute should proceed to alternative dispute resolution, it will explain the process to participants in more detail.
Out-of-home care agencies with case management responsibility and their caseworkers are expected to work with mediation organisers and mediators to provide relevant information as part of the mediation process.
The purpose of the preparatory session is to identify and explore the main issues in dispute and to clarify the individual concerns and goals of each party. It is also an opportunity to discuss the logistics of the mediation conference and agree on what (if any) further information is required to enable each party to clarify their position with the Legal Aid mediator.
Out-of-home care agency caseworkers should also:
- understand the issues that have led to the contact dispute, as well as the views of all parties involved in the contact dispute. This information will help inform the agency’s participation in the process. assist Legal Aid in preparing for the alternative dispute resolution conference by arranging for the child or young person to meet privately with the Children’s Lawyer, by providing contact details for carers (with their consent) and by participating in all stages of the process, including a preliminary session with the Legal Aid mediator.
- talk with the nominated FACS manager casework to discuss the contact issues and agree on the preferred approach
- support the child or young person to meet on their own with the Children’s Lawyer assigned to represent them, consistent with wellestablished practice in family law matters and care matters. The Children’s Lawyer is specifically appointed by Legal Aid NSW to listen and get the views of the child or young person about what they think and want in terms of contact and to represent their best interests.
briefly outline the process to those involved and then provide them with appropriate information using Legal Aid’s fact sheets. It is best practice to obtain the consent of each party before referring the matter to Legal Aid for mediation.
People who must attend a mediation conference include:
- the person(s) involved in the contact disagreement
- the FACS manager casework or, where an out-of-home care agency has case management responsibility, their equivalent, accompanied by a manager casework
- the Children’s Lawyer, as appointed by Legal Aid to represent all children who are subjects of the dispute
- specifically, where there is a current contact order in place, those people who were involved in the original proceedings who would be affected by any variation of the contact order.
Children and young people will also be given an opportunity to express their views and, if appropriate, participate in the conference.
The child or young person’s carer may also choose to attend the mediation conference, but their participation is voluntary.
Subject to the mediator’s approval, participants in the mediation conference may also bring a support person, who will not be permitted to play an advocacy role, or a legal representative. This information will be shared with each person attending the conference.
The mediation conference will run for approximately two to three hours.
Legal Aid will organise a venue, which will be advised prior to the conference. In circumstances where it is not appropriate or practical for conferences to be held face-to-face, for example due to safety concerns, conferences will be conducted by telephone or by placing people in different rooms and moving between them (shuttle mediation).
During the mediation conference, caseworkers are encouraged to work towards a mutual agreement regarding contact that is in the child or young person’s best interest. Representatives from the out-of-home care agency and FACS are expected to participate fully in the mediation conference, negotiate with the other parties and make a genuine effort to resolve the contact dispute.
If there is no current contact order and an agreement is reached during the conference, an Agreement for Contact Arrangements will be drafted at the conference and signed by all parties at the conclusion of the session.
Where there is a current contact order in place and an agreement is reached which varies the existing contact arrangements, parties will complete and sign a Contact Variation Agreement. All parties to the original proceedings must sign this agreement.
After the Contact Variation Agreement is signed, it must be registered with the Children’s Court within 28 days. When it is registered with the Court, this agreement forms part of the Court’s records and it is a matter for the Court to determine who may have access to it.
Before the Children’s Court decides to grant leave to hear an application for a contact order, it will consider whether parties have attempted to resolve the dispute at alternative dispute resolution. In deciding whether to grant leave, the Court will also consider:
- if Legal Aid considers the matter is not suitable for mediation
- if a party refuses or fails to participate
- if no agreement can be reached following mediation.
Only in exceptional circumstances will Legal Aid grant aid to parties for court proceedings in relation to contact when alternative dispute resolution has not been attempted.
It is the role of the mediator to determine if an agreement cannot be reached. If the mediator believes that a party is not participating in good faith, the mediator may determine that an agreement cannot be reached.
If the contact dispute remains unresolved through Legal Aid’s alternative dispute resolution process, the out-of-home care agency should liaise with the local FACS Child and Family District Unit to discuss next steps, including whether a contact application should be brought. Out-of-home care agencies cannot apply directly to the Children’s Court for a contact order. A parent or other party seeking contact may also choose to apply directly to the Children’s Court for a contact order.
Referrals by out-of home care agencies for alternative dispute resolution to resolve contact disputes must be made using the Legal Aid Care and Protection Request for Mediation Form and returned by email to: ADR@legalaid.nsw.gov.au.
If you have any questions about this process, please call the Family Dispute Resolution Unit on 02 9219 5118 or email ADR@legalaid.nsw.gov.au.
Legal Aid Assistance
All parties should be referred to obtain legal advice. Legal advice or assistance is available from the following sources:
- At all branches of Legal Aid NSW. Phone 02 9219 5000 to find your local Legal Aid office
- At any one of the Community Legal Centres (Legal Aid Care Partners)
- At an office of the Aboriginal Legal Services. Phone 1800 733 233 to find out if there is an ALS solicitor in your area
- By phoning the Legal Aid NSW Early Intervention Service on1800 551 589 for advice or for a referral to a service most convenient to you.
Legal Aid’s model for resolving contact disputes through mediation is a three-staged process.
Referral and intake
- Legal Aid assesses the suitability of alternative dispute resolution and appoints a Children’s Lawyer if the matter is deemed suitable.
- Legal Aid has Aboriginal and Torres Strait Islander mediation organisers available if a person involved in the process is Aboriginal or Torres Strait Islander. This should be indicated on the referral form.
- If Legal Aid deems the matter unsuitable for alternative dispute resolution, they will advise the referring agency or individual. In this instance, the agency should liaise with the local Child and Family District Unit about next steps.
- The matter is allocated to a mediator and preliminary discussions are conducted with each person attending the conference, usually by phone. During theses discussions:
- the mediation process is explained
- suitable arrangements for the alternative dispute resolution conference are made
- carers (where they have chosen to be contacted) are advised that they may be involved in the preliminary discussions, even if they choose not to attend the conference
- caseworkers are able to discuss relevant issues with the mediator.
- Caseworkers help facilitate meetings between the child or young person and the Children’s Lawyer.
- The Children’s Lawyer explains the process to the child and helps them express an informed view if they are able to participate. They also explain to the child or young person any agreements that are reached. It is important to note that conversations between the child and their lawyer are confidential.
- The mediator may also seek a face-to-face meeting with the child or young person prior to the conference.
- All participants meet to discuss the issues and work to reach agreement on contact arrangements.
- If an agreement is reached:
- a written agreement is signed on the day of the mediation conference.
- all participants receive a copy of the agreement.
- If the parties agree to vary the terms of an existing contact order, the contact variation agreement must be registered with the Children’s Court within 28 days of the conference.
- Where FACS or an out-of-home care agency initiate the proceedings, the FACS manager casework will be responsible for registering the variation agreement, although parties to the conference may nominate another participant to do so.
- If an out-of-home care agency has case management responsibility, the FACS delegate must sign and register the agreement within the 28 days.