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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 Children's Court website 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 DCJ 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 DCJ 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:
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 DCJ 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.
Find out more on alternative dispute resolution.
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 DCJ 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 DCJ 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 DCJ , although they do need to advise DCJ 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.
Any families seeking a Care and Protection, Early Intervention mediation, must be referred to Legal Aid for advice. All referrals for an Early Intervention Care Mediation must be made by a solicitor following an assessment about the most appropriate model for their client and their individual circumstances. If an interested participant contacts the FDR unit directly, they will be referred for legal advice. Legal aid funding for early intervention mediations in Care & Protection matters is now administered as an Early Resolution Assistance (ERA) service type, not a grant of aid.
Out-of-home care agency caseworkers must advise DCJ when they make the referral for mediation to Legal Aid. They do this through their local Child and Family District Unit.
The Child and Family District Unit will organise for a DCJ 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 DCJ 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 DCJ Information Exchange Unit to seek the relevant information. DCJ 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:
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:
People who must attend a mediation conference include:
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 2 to 3 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 DCJ 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 contact order in place an agreement can be drafted, however this is no more than an intent of goodwill. To get a binding outcome and there needs to an application for a contact order made to the Childrens Court. This is not the same process as an agreement to vary.
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:
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 DCJ 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 [email protected].
If you have any questions about this process, please contact:
All parties should be referred to obtain legal advice. Legal advice or assistance is available from the following sources:
Legal Aid’s model for resolving contact disputes through mediation is a 3-staged process.
Referral and intake
Preliminary preparation
Mediation Conference
The Children’s Court has prepared the following fact sheets that explain the process for:
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