Key Takeaways:
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- Family Dispute Resolution (FDR) is a type of mediation that is mandated by Australian family law to help separating families reach their own agreements.
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- FDR is typically used to resolve parenting matters and property division in a less costly and time-consuming manner than going to court.
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- It is run by an accredited third-party facilitator who helps parties find mutually acceptable solutions.
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- FDR is compulsory for parenting matters before applying to the court for orders but may not be suitable in cases involving safety concerns or family violence.
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- Benefits of FDR include retaining control over decisions, flexibility in agreements, cost-effectiveness, and improved communication between parties.
As a separation involves many life changes and big decisions, it’s no surprise that it’s common for conflict and disputes to arise.
From working out how you will parent your kids and figuring out new living arrangements to rejigging budgets and dividing assets, a lot needs to happen.
Disputes can happen at any point of a separation and resolving them can sometimes feel impossible. However, while resolving conflict and finding solutions can be tough and time-consuming, there are resources out there that make it possible and help you to avoid ending up in court for decisions.
One resource available to separating couples and families is Family Dispute Resolution.
In this article, we will discuss what Family Dispute Resolution is, how it works and when it is appropriate for resolving family law disputes.
What is family dispute resolution?
Family dispute resolution, also commonly referred to as FDR, is a specific type of mediation that is covered under the Australian Family Law Act 1975 and is aimed at separating families and helping them to come to their own agreements.
The Australian family law system provides various options and avenues for people to sort out the matters that arise when a family relationship breaks down. The point of this is to ensure that people have the option to find their own solutions and avoid costly and lengthy processes, like court proceedings.
People can work out agreements and arrangements for matters like parenting and property, privately, with the help of family lawyers, through mediation, and family dispute resolution. All of these options are considered preferential over going through court proceedings.
The Family Dispute Resolution process is run by an accredited Family Dispute Resolution practitioner who is an impartial third-party that helps to facilitate discussions. The goal is to allow the parties to discuss the issue or issues in dispute and find an outcome that works best for them.
In some cases, FDR may be a mandatory process that must at least be attempted before applying to the Federal Circuit and Family Court of Australia for court orders.
Family Dispute Resolution is most commonly used to resolve parenting matters, like living arrangements and parenting arrangements.
It’s important to note that while FDR can be very effective, it may not always be appropriate, such as in instances where family violence is or has been present – we will talk about this in more detail later in this article.
Is Family Dispute Resolution the same thing as mediation?
Family Dispute Resolution and mediation are very similar and are related processes, however, they are not the exact same thing.
Mediation and FDR have a number of things in common, including using a third-party facilitator whose role is to ensure the parties communicate effectively, understand each other’s perspectives, and explore potential resolution outcomes. FDR is also technically a type of mediation and couldn’t technically exist without mediation.
However, while they have similarities, there are also a number of key differences, including but not limited to:
- Family Dispute Resolution is specifically for family disputes that arise from the breakdown of a family relationship and is mandated by the Australian family law system.
- Before applying to the court for parenting orders, Family Dispute Resolution must be attempted. There could be exceptions to this, depending on unique factors.
- Family Dispute Resolution only focuses on family law matters, whereas mediation can be used to resolve a wide range of disputes, including those outside of family law.
If you would like to learn more about mediation in family law, you can read this article.
When do you do Family Dispute Resolution?
Family Dispute Resolution can technically be tried at any point of your separation and in some situations, if you wish to apply to the family law court for orders, you will be required to genuinely attempt Family Dispute Resolution first.
To clarify, it is not required if you are applying for divorce orders, but it is almost always required if you want parenting orders from the court. However, if you’re applying to the court to make a parenting agreement legally binding through a consent order, it is also not required.
It’s possible to try Family Dispute Resolution even when you’ve already started court proceedings and, in some situations, you may be ordered by the court to participate in family dispute resolution first.
Family Dispute Resolution can be beneficial for many people, however, it may not be appropriate in every situation. Some situations where Family Dispute Resolution may not be appropriate include:
- It may put your child’s safety at risk
- It may put your own safety at risk
- If a mental illness or substance abuse issue impacts a parties ability to make decisions and cannot participate effectively.
- There are intervention orders
- The matter is urgent
- If there are allegations of child abuse that are being investigated
- There has been family violence or domestic violence perpetrated by either party.
When exactly is family dispute resolution compulsory?
We mentioned earlier that family dispute resolution is compulsory in some situations. According to the Australian family law system, family dispute resolution must have been genuinely attempted before people can apply to the court for parenting orders.
As we mentioned above, FDR may not always be an appropriate option in every situation, however, one reason it is compulsory in parenting matters is because parenting arrangements can be flexible and highly specific to your own unique situation, and by participating in FDR, you may be able to come to an agreement that is best for your children and you.
What are the benefits of family dispute resolution?
Resolving disputes through Family Dispute Resolution has many different benefits, including:
- You can make your own decisions, retaining more control over the outcome than if a judge were to make decisions and making it more likely for both parties to stick to the agreements.
- It allows you to factor in the unique circumstances of each party to create flexible arrangements that are not general in nature.
- If your agreement breaks down, situations change or you just need to refresh your agreements, it’s possible to revisit Family Dispute Resolution to make new arrangements.
- It is often a cheaper and faster process than going through court proceedings.
- It may also help to improve communications and relationships between the disputing parties, which can be helpful in situations where children are involved and communication in the future is likely to be necessary.
How does Family Dispute Resolution work?
Before any dispute resolution proceeds, you and your situation will be reviewed by the practitioner to ensure that family dispute resolution is appropriate for your case. This usually involves each party being interviewed.
If family dispute resolution is deemed appropriate in your situation it will go ahead and be conducted by the accredited and registered dispute resolution practitioner. They will take the time to discuss each parties’ concerns and wishes and essentially facilitate discussions and exploration of various resolution options.
Dispute resolution can be conducted through Family Relationship Centres in Australia, where the service is usually available free of charge for the first session. Dispute resolution can also be conducted through private Family Dispute Resolution Practitioners. Private practitioners will usually charge fees. If you’re looking for Family Dispute Resolution services, you can find a list of all accredited Family Dispute Resolution Practitioners here.
For some people, Family Dispute Resolution will lead to agreements being made, which can be formalised and made legally binding by applying to the court for consent orders. It’s important to note that when it comes to parenting arrangements, parties have the option to create a parenting plan which cannot be legally formalised, or they can make a parenting arrangement that can be formalised with consent orders.
What if an agreement can’t be reached during family dispute resolution?
In some cases, Family Dispute Resolution is not successful. In these cases, it means that the parties may need to apply to the court for orders to be made for their situation.
As we discussed earlier, before applying to the court for parenting orders, parties must participate in Family Dispute Resolution and if it is not successful, they will need get a certificate from the practitioner that is to be filed with your parenting order application.
These certificates are known as 60I certificates and will provide information about your family dispute resolution situation. For example, the certificate may state that parties participated and made a genuine effort but were unable to reach an agreement or that family dispute resolution is not appropriate in your situation, or that one party did not turn up or did not make a genuine effort.
The certificate can provide the court with further insight into your situation and make it easier for them to make decisions in your matter.
Once an application to the court for orders has been made, you will need to participate in court proceedings and provide information, evidence and ensure you follow their instructions carefully. The court will make orders based on information and evidence provided. These orders are legally binding and can usually only be changed in exceptional circumstances.
What disputes can be resolved using Family Dispute Resolution?
As family dispute resolution is a process of the Australian family law system, it can only be used for matters that fall under family law.
The types of matters include:
- Parenting arrangements and parenting plans
- Child custody
- Child support
- Property division
- Spousal maintenance and financial support
These are only some of the matters that could be resolved during Family Dispute Resolution.
Can a lawyer come to FDR?
It is possible for a family lawyer to be involved in a Family Dispute Resolution service. This usually requires that both parties agree to the presence of lawyers.
A lawyer can help to provide legal advice, as well as ensure that their client understands their rights, obligations and options. They can also provide guidance and ensure that their client’s legal rights are protected throughout the process.
Lawyer assisted family dispute resolution may not be a service offered by all family dispute resolution practitioners.
Are you going through a separation?
If you’ve separated from your partner and you’re trying to work out your next steps, consider getting in touch with our family law firm today.
We’re family lawyers with experience in all areas of family law, including assisting with resolving the matters that arise from separation. If you’re preparing to undertake family dispute resolution, we can also provide support, guidance and advice. If you’re not sure where to start with your separation, we can also help you.
Our compassionate team understands how stressful and overwhelming family law matters can be, so we’re here for you whenever you need us. Our 24/7 service is available to people Australia-wide.
Call us today on 1300 667 461 or book a free consultation using the button below.
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