family dispute resolution
What is Family Dispute Resolution?
Family Dispute Resolution (‘FDR’) is a process whereby parties involved in a family law dispute attempt to resolve that dispute outside of court proceedings with the assistance of an independent Family Dispute Resolution practitioner.
Family Dispute Resolution explained
is the FDR practitioner qualified?
A Family Dispute Resolution practitioner must be accredited under the Family Law (Family Dispute Resolution Practitioners) Regulations. Accreditation criteria includes gaining the appropriate qualifications, clearing a national police check, meeting the working with children requirements of the relevant state or territory, and achieving units of competency such as screening and assessing families for family violence and child abuse.
What organisations provide Family Dispute Resolution?
FDR can be provided by a range of organisations and individuals. These include Family Relationship Centres, legal aid commissions, community organisations, lawyers and social workers. The Family Dispute Resolution Register provides an online portal from which to search for the nearest FDR practitioner by typing in your postcode or your suburb.
Who can participate in Family Dispute Resolution?
All parties involved in a family law dispute are able to participate in FDR. Other family members and lawyers are allowed to be there if the FDR practitioner allows it. Children are not present during FDR but if parental consent is given, a counsellor may talk to the child or children.
What are the benefits of Family Dispute Resolution?
FDR is generally a much more affordable and quicker process than going to court. FDR promotes communication and cooperation between the parties. It allows parties to have greater control of the decision making process and greater input in the outcome of the dispute.
What is the process of Family Dispute Resolution?
The most common type of FDR process is mediation. In mediation, the parties attempt to negotiate with each other with the assistance of the FDR practitioner. The parties are encouraged to generate options, consider solutions and ultimately reach an agreement on some or all of the issues in dispute. Each party is afforded the opportunity to be heard. However, advice is not given and the issues are not adjudicated on.
Family Dispute Resolution and parenting matters
The Family Law Act makes it compulsory for all parties to make a genuine effort to resolve a dispute before applying to the court for a parenting order. The court is unable to hear a case where children are involved unless a "s60I certificate" is filed with an initiating application or an exemption applies.
SECTION 60I CERTIFICATES
What is a s60I certificate?
Section 60I of the Family Law Act 1975 seeks to ensure that all persons who have a dispute about parenting matters make a genuine effort to resolve that dispute by family dispute resolution before going to court. A section 60I certificate typically states that a person has attended upon an FDR practitioner for the purpose of trying to resolve the family law parenting dispute through mediation, or that family dispute resolution is not appropriate. The certificate allows that person to then file an application for parenting orders in either the Family Court of Australia or the Federal Circuit Court.
What does a section 60i certificate say?
A s60I certificate relates to the result of the FDR and can only be issued by an accredited FDR practitioner. The certificate will state one of the following:
The court may take into account the type of certificate that has been issued when making an order and when deciding on possible costs awards.
Are there any exceptions to obtaining a s60I certificate?
There are a number of exceptions to the general requirement to obtain a s60I certificate prior to filing for parenting orders. These include where:
- a) The application is for orders that are to be made with the consent of all the parties or in response to an application made from another party;
- b) There has been family violence or child abuse or there is a risk of family violence or child abuse;
- c) An existing order relating matters involving children has been contravened;
- d) The case is one of urgency; or
- e) One of the parties is unable to participate effectively in FDR because they are incapacitated in some way.
Are the things said in FDR confidential?
Under s10H of the Family Law Act, an FDR practitioner is required to keep everything said in FDR confidential. A FDR practitioner may only disclose these communications if the party who made that communication gives their consent or if the FDR practitioner reasonably believes another person or a child has been, or is at risk of, being harmed.
Is anything said in FDR admissible in court?
Anything said in the presence of a FDR practitioner in FDR is inadmissible in court under s10J of the Family Law Act. The only exceptions are where there has been an admission by a party that a child has been abused or is at risk of being abused or where there is a disclosure by a child that they have been abused or are at risk of being abused.
Family Dispute Resolution and financial matters
The Family Law Rules require all parties involved in a financial dispute to make a genuine effort to resolve that dispute prior to going to court. The court expects that all parties have attempted pre-action procedures prior to filing an initiating application. FDR is one included as one of these pre-action procedures. A party who has not complied with these procedures may have costs penalties awarded against them.
There are certain circumstances in which parties are exempt from following pre-action procedures. These include cases involving urgency, family violence and child abuse, fraud, intractable issues, or where a time limit is close to expiring.
How can Bainbridge Legal help?
It is always best to obtain legal advice if you are separating or getting a divorce. At Bainbridge Legal we are able to advise you on all your FDR and judicial options. Our experienced practitioners can assist you in preparing for your Family Dispute Resolution and can attend your FDR with you. Should Family Dispute Resolution fail, our practitioners will also assist you in your upcoming court proceedings. We can help you understand your rights and responsibilities, the relevant law, and the procedures you will need to comply with. We have family law accredited specialists available to help you through your legal issues.