Updated: Sep 23, 2021
Photo courtesy: Jude Beck sourced from Unsplash
Family law dispute is one of the major issues in every modern society. It costs us too much time, money and heartache. Going through a separation or divorce is one of the toughest times of our lives. The key to managing the stress, while keeping the children safe, is finding effective mechanisms to resolve the family law-related issues between you and your former partner.
Family Dispute Resolution (FDR) and Mediation are alternative dispute resolution systems. Those are specifically designed to help separated families to reach an agreement without going to court. In 2008 the Family Dispute Resolution was introduced in Australia as a part of the Family Law Act 1975. If you need more information about FDR, please visit (https://www.familyrelationships.gov.au/separation/family-mediation-dispute-resolution#:~:text=Family%20Dispute%20Resolution%20(FDR)%20is,the%20needs%20of%20their%20children) for more details.
1. What is Family Dispute Resolution?
Family Dispute Resolution (FDR) is a special mediation process. In FDR, an independent and trained Family Law Dispute Resolution practitioner helps people, who are affected or likely to be affected by separation or divorce, to resolve their disputes. During a Family Dispute Resolution, you will discuss the issues in dispute and consider different options available to you and your former partner to resolve those issues. while doing so, you will be encouraged to focus on the needs of their children.
Under the Australian Family Law, the separated parents must attempt the Family Dispute Resolution before applying to a family law court for parenting orders. It is a practical and cost-effective way of separating families to sort out their differences and to agree on future parenting arrangements with professional help.
Family dispute resolution practitioners are trained and registered, but they don’t have to be legal practitioners.
2. How Family Dispute Resolution can be advantageous for you?
If you are separating from your partner, The Family Dispute Resolution is useful for the following reasons:
It is designed for quick resolution of issues between you and your former partner without going to court;
It is focused on the welfare and safety of your children;
It is a substantially less expensive way of dispute resolution with professional help;
The family Dispute Resolution process is less stressful and less complicated than a court proceeding;
It allows you to make your own decisions and agree to an arrangement that suits your situation the best, rather than having a judge decide your issues;
Family Dispute Resolution may help you to establish effective communication with your former partner and others involved;
It may help you and your former partner to separate your emotions from the issues at hand and agree on a resolution that suits both of you.
3. When can you go to Family Dispute Resolution?
You can go to the Family Dispute Resolution at any stage of your separation, even if you have already initiated or are in the middle of a court proceeding. If the court finds it appropriate, it may order the parties to participate in the FDR at any stage of a proceeding.
Generally, you can avail of Family Dispute Resolution to resolve the following issues;
children and parenting,
division of property,
adult child maintenance.
Apart from the parents, if you are a grandparent or an important adult in the lives of children, you can also use FDR to reach an agreement about the above-mentioned issues.
4. How Does Family Dispute Resolution Work?
Before the Family Dispute Resolution takes place, you will be assessed to see if the service is right in your case. Usually, each party involved in the case will be interviewed separately for the assessment.
If your case is found to be suitable for the Family Dispute Resolution process, an independent and registered family dispute resolution practitioner will conduct your proceedings. The practitioner can
help you to discuss the issues and look at your options,
help you and your former partner to work out how to reach an agreement, and
give you a certificate at the end of the process.
5. When do you need a certificate and why?
If you cannot resolve your issues in Family Dispute Resolution you will need a certificate to show the court that you have tried FDR or it is not suitable in your situation. Only a registered family dispute resolution practitioner can issue these certificates. They are called section 60I certificates.
The certificate may say you have:
been to family dispute resolution with your former partner (or another person involved) and you both genuinely tried to sort out an agreement;
been to family dispute resolution with your former partner (or another person involved) and one or both of you did not genuinely try to agree;
tried to go to family dispute resolution, but the other person did not turn up or did not want to participate.
The certificate may also say you are not required to go to family dispute resolution because it was assessed as not appropriate.
6. When Family Dispute Resolution is not appropriate for you?
Family dispute resolution is not suitable for every situation. It will not work for you, particularly if:
your former partner does not agree to attend;
your safety or the children’s safety is assessed to be at risk;
a person’s capacity to participate is affected by, for example, mental illness or a substance abuse problem;
allegations of child abuse are being investigated;
there is an intervention order which prevents you from having any contact with the other person and does not have an exception clause allowing for mediation;
the case is urgent, for example, location (finding) and recovery (returning) of children orders, or where assets may be sold, lost or destroyed.
7. How Does Family Violence Impacts Family Dispute Resolution?
Family Dispute Resolution may not be an appropriate mechanism where there has been family violence involved. However, sometimes special arrangements can be made to ensure that the process can proceed safely. For example, you and your former partner can be in separate rooms while attending the process or participate over the telephone. You might also be able to have a lawyer or support person with you.
You should let your family dispute resolution service know if you are worried about your emotional or physical safety. They will want to make sure you feel safe throughout the process and can negotiate freely.
8. How confidential are the discussions held in Family Dispute Resolution Process?
The discussions in Family Dispute Resolution is highly confidential. It is a serious offence to disclose confidential information and penalties apply.
Generally, discussions held during family dispute resolution processes cannot be used anywhere else unless:
you give permission;
the practitioner believes that this is necessary to follow the rules of any law;
If you are under 18, both of your parents also need to agree to the information being given out. If they cannot agree, the court may make a decision.
Family dispute resolution discussions may not be confidential if:
the family dispute resolution practitioner reasonably believes that a child or children have been or are at risk of abuse (physical or sexual assault, serious psychological harm or neglect);
there is a risk of harm to any person involved or to their property;
a crime involving violence or threats of violence may be prevented.
9. What happens when Family Dispute Resolution does not work?
If the Family Dispute Resolution does not work, you can go to court. If you want to apply for a parenting order or custody arrangement, you have to get a certificate from a registered family dispute resolution practitioner and file it with your application to the court. It will be the evidence of your attempt to resolve the issues at Family Dispute Resolution before the court proceedings.
Family Dispute Resolution can be a very effective solution for your Family Law disputes. However, it is not suitable for every situation as every family is unique. You need to assess if that is the most suitable solution for you. If you need help to find a Family law specialist lawyer to get effective advice, please contact us at www.lawcircuit.com.au or call us at 0418631798 or email us at email@example.com.
We will connect you to the best family law specialists to solve your legal problem.