Family Mediation

Family Dispute Resolution

The Family Law Act 1975 (Cth) compels separated parents with children to make a genuine effort to resolve disputes by family dispute resolution before applying to the courts for an order (s 60I(1) Family Law Act).

Family Dispute Resolution (FDR) is a special type of mediation for helping separating families to come to their own agreements. During FDR, families will discuss the issues in dispute and consider different options while being encouraged to focus on the needs of their children. FDR uses a neutral and accredited Family Dispute Resolution practitioner.

The main objective of FDR is to assist participants to make a parenting plan setting out the agreed future parenting arrangements.

It is a practical and a low cost way for separating families to sort out future parenting arrangements with professional help. 

 

It is compulsory under Australian family law for separated parents to attempt Family Dispute Resolution before applying to a family law court for parenting orders.

There are exemptions to this requirement, including:

  • When you are formalising an agreement through ‘consent orders’
  • Where family violence or child abuse is a factor
  • When you are responding to an application to court
  • Urgent issues
  • When a person is unable to participate effectively (for example, due to incapacity or geographical location)
  • When a person has contravened and shown a serious disregard for a court order made in the last 12 months.

 

Family Dispute Resolution practitioners

 

When a family disagrees about arrangements for children after separation, an FDR practitioner is a good person to ask for help.

An FDR practitioner is an independent person trained in mediation and negotiation and specialising in family disputes. They are neutral and don’t take sides with any of the people involved in the mediation and will facilitate the process by encouraging people to talk about the particular issues in dispute.

They are trained in working in a family law environment and in responding to domestic and family violence. They are also trained in creating a supportive environment, particularly for the safety of vulnerable people. They should provide a safe environment to allow people to openly discuss and clarify issues as well as allow them to feel safe to disagree.

An FDR practitioner is accredited under the standards set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

 

Confidentiality

Everything you say in front of an FDR practitioner is confidential. There are some exceptions, such as to prevent a threat to someone’s life or health or the commission of a crime.

What is said during FDR cannot be used as evidence in court. An FDR practitioner must report child abuse or anything that indicates a child is at risk of any kind of abuse, and in some circumstances this may be used throughout court.

 

Starting Family Dispute Resolution

Once someone engages with an FDR practitioner, the practitioner will usually invite the other person to a mediation session. The practitioner will advise the other person that if they don’t attend the mediation, the practitioner may need to issue a certificate so that the first person can make an application to a family law court.

The FDR practitioner will assess if FDR is suitable for the family situation. This includes considering issues such as family violence, safety, equality of bargaining power, risks to children, the emotional and psychological health of participants and any other issues that they think may make FDR unsuitable.

The FDR practitioner should also explain their role and the process of mediation so each party understands clearly what is expected and the potential outcome of the mediation.

 

What happens in Family Dispute Resolution?

The FDR practitioner will help to identify the issues that need to be resolved and encourage each party to listen to the other’s point of view. They will also try to keep each person on track and focussed on the children. Ideas and options will be shared with the aim of coming up with workable solutions that are in the best interests of the children.

Sometimes it’s not suitable to have each person in the same room, so the practitioner may arrange to go back and forth from different rooms. This is called ‘shuttle mediation’. Sometimes it is necessary for the mediator to talk individually with each party to help move issues along or to discuss options for negotiation.

The participants will be helped to develop a parenting plan to set out arrangements for the children. An FDR practitioner will also check that everyone understands what is being said and agreed upon.

If the mediation is not successful for whatever reason, an accredited Family Dispute Resolution practitioner can issue a certificate to allow an application to be made in family law court. The certificate is called a ‘Section 60I certificate’ and can only be issued by an accredited Family Dispute Resolution practitioner.

A Section 60I certificate can also be issued if FDR is not appropriate for the particular situation. This could mean there are concerns about family violence, the safety of the parties and risks to children, the ability for each party to be able to negotiate, or other issues the practitioner feels are relevant.

The Section 60I certificate will say one of the following things:

  • The other party did not attend
  • You and the other party attended and made a genuine effort to resolve the dispute
  • You and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
  • The FDR practitioner decided your case was not appropriate for FDR, or
  • The FDR practitioner decided it was not appropriate to continue part way through the FDR process.

 

Family mediation and dispute resolution | Family Relationships Online

 

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