In our experience, most separating parents are able to reach an agreement as to parenting arrangements for their children after they separate, they just need some assistance in helping them reach agreement or navigate areas of disagreement, and then document any agreement so that everybody knows their responsibilities.
Before making an application to the Court, each party is required to make a genuine effort to resolve parenting issues.
Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provide context as to the meaning of a genuine effort, and this means in effect, that you are to cooperating with the other parent in finding an appropriate dispute resolution service, attending upon a dispute resolution service, and participating in dispute resolution.
Dispute resolution is a broad term which encompasses mediation, and is designed to make it more difficult for parties to litigate as a first option to resolve their disputes, as it places the onus on parties to first make a genuine attempt to resolve their dispute informally – that is to say, without going to Court, because of the Court’s recognition that going to Court is often an expensive, acrimonious, and difficult process for everyone involved, especially children.
Family Dispute Resolution (FDR) is a form of mediation which focusses on supporting separating families reach an agreement without the burden of litigation. In the majority of parenting matters FDR is process which is mandatory before filing an application to the court. Exceptions to this requirement are permitted where a Family Dispute Resolution Practitioner (FDRP) determines that FDR is not suitable due to the circumstances.
Prior to instituting proceedings for parenting matters, the vast majority of the time you will be required to provide a s60i certificate from an FDRP indicating that:
1. A party did not attend FDR, and the reason for their non-attendance was because the other party refused or failed to attend FDR;
2. The FDRP did not consider the matter appropriate for FDR, and therefore the person with the certificate did not attend FDR.
3. All parties to the dispute attended upon FDR conducted by the FDRP, and all parties made a genuine effort to resolve the issues in dispute but it was unable to be resolved;
4. All parties attended FDR, but one party did not make a genuine effort to resolve the issues in dispute; or
5. The parties began FDR, but part way through the practitioner decided it was not appropriate to continue.
The process involves an independent, neutral FDRP, who assists the parties in resolving their dispute from a facilitative standpoint. They are not permitted to provide legal advice or to make or influence a decision. Furthermore, all communication in the course of FDR is inadmissible in Court and is confidential. However, an FDRP is required by law to report child abuse or potential child abuse, and to disclose information in order to prevent a threat to someone’s life and wellbeing, or to prevent the commission of a crime.
You can seek FDR services by consulting either:
• Family Relationship Centres
• Legal Aid Comissions
• Other community-based family law services, or;
• A private practice run by an accredited FDR practitioner.
FDR Practitioners are not just mediators, but they also have specific training to meet the requirements set by the Attorney General’s Department. They are skilled at assisting separating parties reach agreement.
FDR is also significantly less expensive and time consuming than going to court. Services such as Family Relationship Centres provide a free one-hour initial appointment for every family, and base fees thereafter on the relative salary of the parties. Many private FDRPs offer faster intake times, and are also an inexpensive mechanism to resolve parenting disputes. Sometimes there doesn’t need to be a dispute per se, it may just be a matter of having somebody neutral there to assist both parties in working together to document an agreement.
When an agreement is reached through FDR, the parties have the choice of either entering into a parenting plan, or consent orders filed with the Court. It is important to note that a parenting plan is not legally enforceable.
Unsuccessful Family Dispute Resolution
In some cases, an FDRP will determine upon intake or during the course of the mediation that FDR is unsuitable due to circumstances including: instances of family violence or child abuse, where the matter is urgent, where there is an incapacity of one party or an inability of one party to participate. There is also the possibility that FDR is unsuccessful. If either of these situations occur, you and the other party to the dispute are required to obtain a section 60I certificate from an FDRP, in order to make an application to the Family Court. You must make a genuine effort to resolve your dispute via FDR.
If you need further advice from our expert family law team, please contact us on 1300 749 709 to see how our experienced team can assist you.