Separating couples should make reasonable attempts to agree on the future living arrangements, care and responsibility for their children. The Family Law Act 1975 (Cth) provides that unless there are extenuating circumstances, family dispute resolution is compulsory if agreement cannot be reached.
Unless exempt, parties wishing to proceed to Court for parenting orders must first provide a certificate stating that they have attempted dispute resolution. This is required even if there are existing orders with respect to a child for which amended or additional orders are sought.
What is Family Dispute Resolution?
Family Dispute Resolution (FDR) is a mediation service conducted by accredited Family Dispute Resolution Practitioners. Practitioners are registered on the Family Dispute Resolution Register and services are provided by individuals, Family Relationships Centres, and other community organisations.
Bernadette Smyth is a highly experienced accredited Family Dispute Resolution Practitioner.
The objective of attending family dispute resolution is to try to resolve children’s matters without the stress, burden and financial costs of attending Court, with the best interests of the children being paramount.
If an agreement is reached, a parenting plan can be developed, or consent orders filed with the Court.
Do I need to attend FDR?
There are circumstances in which mediation is either not appropriate for the parties or not required. These include where:
- the parties are applying for consent orders;
- a party is responding to an application that has already been filed in the Court;
- the matter is urgent;
- the matter involves family violence or child abuse issues;
- due to a party’s incapacity or location, he or she is unable to effectively participate;
- the application is for a contravention of an existing order made within the past 12 months and a person has shown a serious disregard to his or her obligations under the order.
Parties claiming an exemption from attending mediation must provide an affidavit setting out the relevant circumstances with their application to the Court.
Going to Family Dispute Resolution
It is important that those who cannot resolve matters concerning the children attend FDR. Family members or support persons are permitted to attend. If you would like your lawyer involved, you should discuss this with the practitioner conducting the mediation beforehand.
Children do not attend however in some cases a family counsellor or child psychologist will communicate with a child and prepare a report if required.
The role of the FDR practitioner is to assist the parties to cooperate in a positive manner and to work through the real issues, leaving emotional matters aside.
The parties attending should make genuine efforts to resolve the issues in dispute and explore options for workable parenting arrangements that will be in the best interests of the child or children. The FDR practitioner should ensure that each party understands the process and the terms of any agreement reached.
Unless the FDR practitioner has a legal obligation to disclose information, all communications exchanged during the mediation are confidential and cannot be used as evidence if the matter ultimately proceeds to Court. Information that must be disclosed includes matters concerning child abuse or a risk of child abuse, or that would prevent serious harm to a person or the commission of a crime.
The costs of attending FDR may depend on your financial circumstances but it is likely to be much less costly than attending Court.
What happens with any agreement reached?
Arrangements agreed for the ongoing and future care of the children may be documented in a parenting plan. Parenting plans are not legally enforceable however may be considered if a party subsequently applies to the Court for a parenting order to vary the parenting plan.
Alternatively, agreements can be documented in consent orders which are legally binding and can include various aspect of the parenting and care arrangements for the children. Consent orders can be prepared by your lawyer and filed in Court. You or your ex-partner will not need to attend Court however the orders will have the same force as an order made after a Court hearing.
What if an agreement cannot be reached?
If both parties attend FDR and the outcome is unsuccessful, the practitioner will issue a certificate noting each parties’ attendance and verifying that each made a genuine attempt to resolve the dispute.
Alternatively, the certificate may indicate that one party failed to attend, one or both parties failed to make a genuine attempt to resolve the dispute (either initially or part way through the mediation), or that FDR was not appropriate in the circumstances.
Non-attendance at FDR (unless an exception applies) may result in a delayed Court hearing or adverse costs orders.
Going to Court
The Family and Federal Circuit & Family Court of Australias have considerable discretion when determining children’s matters. If agreement cannot be reached regarding parenting issues it may be necessary to apply to Court for the appropriate orders. The overriding principle considered by the Court is that the best interests of the child are paramount. Essentially, this means that children:
- should have the benefit of a meaningful relationship with both parents;
- be protected from physical and psychological harm;
- receive parenting that allows them to reach their full potential; and
- unless there are issues of risk, have the right to spend time on a regular basis with both parents.
In parenting cases, attendance at FDR is generally compulsory before filing proceedings in Court.
Attending FDR can result in an agreement for the ongoing care and responsibility for your children which can be documented in legally binding orders. If the matter is not fully resolved, attending FDR may at least narrow the issues in dispute or encourage the parties to communicate more positively about their children.
You may not need to attend FDR in certain circumstances, for example, if there is a risk of family violence or abuse. Your family lawyer will assess your situation and assist you in reaching a workable plan for your children.
If you or someone you know wants more information or needs help or advice, please call us on 02 7202 2137 or email [email protected].