Resolving family disputes without going to court
The family law system encourages parties to discuss and negotiate parenting arrangements and property settlements without resorting to taking the matter to court. Family Dispute Resolution (“FDR”), is the legal term for services that help people going through separation to resolve their family disputes. It is a form of mediation. FDR can be useful for many areas of family law including issues relating to property, children, child support, and spousal maintenance.
Is it compulsory?
Whilst FDR is not compulsory for property matters, it is compulsory for parenting matters unless you can satisfy one of the following:-
- You are applying for Consent Orders (i.e. have reached an agreement without needing FDR);
- You are the respondent in the proceedings;
- The matter is urgent;
- There has been, or is a risk of, family violence or child abuse;
- A party is unable to participate effectively i.e. due to incapacity; or
- A party has contravened Court Orders and shown serious disregard to a Court Order made in the preceding 12 months.
elringtons can provide you with advice on whether your situation fits within these exceptions.
FDR services are provided by a number of accredited organisations and accredited private mediators including Family Relationships Centres located throughout the country, Relationships Australia and the Conflict Resolution Centre located in Civic in Canberra. . You call the Family Relationship Advice Line on 1800 050 321.
elringtons can recommend a number of accredited individuals mediators and counsellors who provide FDR services. Waiting periods for appointments for FDR practitioners can be common, in urgent circumstances elringtons arrange an appointment for a mediation session within a short period of time.
How do I prepare for an FDR Conference?
Normally, the mediator/counsellor arranges to meet each party individually before the joint mediation session or sessions commence. The mediator/counsellor will inform each party about the process, the preparation to be made by each party for the mediation session and he/she will also take the opportunity to ascertain the suitability of the parties to undertake mediation/counselling.
It is not the role of the FDR practitioner to advise the parties about the law and it is essential that each party obtain advice from a family law solicitor to become informed about his/her legal rights and obligations.
Some people try take control of the agenda and decide what is included and what is excluded. A good mediator will try to ensure that such tricks are not applied in FDR conferences. He/she will also address any power imbalance that may exist between the parties. The FDR practitioner will suggest to the parties to keep an open mind about possible outcomes that may be arrived at mediation even unexpected outcomes.
In any case, it is important for a party preparing for an FDR Conference to reflect and plan strategically. Again, the advice from the family law solicitor should include strategic and tactical possibilities.
What happens in an FDR Conference?
Before you start FDR, your FDR practitioner must tell you about the FDR process, your rights, his or her role, qualifications, and the fees charged. If you are trying to resolve a disagreement about your children, the FDR practitioner must give you information about parenting plans and other services available to help you. More information on costs can be found at Family Relationships Online.
An FDR Conference may be lawyer inclusive or alternatively the parties meet alone with the FRD practitioner. Once an FDR conference is arranged the parties meet with the FDR practitioner in separate rooms initially, in appropriate cases their lawyer will be present. If suitable the FDR Practitioner may assemble both parties to talk in a third room together with the practitioner acting as mediator. During the session, the parties may from time to time withdraw to their separate rooms if required.
If you have concerns for your safety you should make the mediator aware of these concerns. It is possible for the mediator to conduct the FDR conference in a shuttle-style manner, i.e. with you and your former spouse in separate rooms.
What happens after you come to an agreement?
If you and your former spouse are able to reach an agreement at an FDR conference you will not only save time and money but also a whole lot of stress. Additionally, the agreement you and your former spouse reach is an agreement which you have both consented to. There is finality and the outcome is not mandated by the Court, who often knows little of your personal circumstances. The chances of a lasting agreement are extremely high because it is reached through mutual participation.
In the event you are able to reach an agreement with your former spouse, this can be drawn up into Consent Orders or a Parenting Plan.
What happens if you don’t come to an agreement?
If you and your spouse are unable to reach an agreement, the mediator may provide either you or your former spouse with a certificate pursuant to section 60I of the Family Law Act 1975, commonly referred to as a section 60I certificate. This certificate will enable you to commence proceedings either in the Family Court of Australia or the Federal Circuit Court of Australia. The certificate will say one of the following things:-
- That you and the other party made a genuine effort to resolve the dispute at hand;
- That you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute;
- The other party did not attend;
- The FDR Practitioner determined that your case was not appropriate for FDR; or
- The FDR Practitioner determined it was not appropriate to continue with the conference part way through the FDR process.
You should be aware that everything you say in a FDR conference is confidential and cannot be used against the other party should you then decide to take the matter to court. However, in limited circumstances, the mediator may need to disclose what was said (i.e. if a threat is made to someone’s life, the commission of a crime or allegations of child abuse are raised).
Should you have any further questions in relation to FDR and the services available, please do not hesitate to contact:
e: email@example.com | p: 02 6206 1300