What is FDR?
The Family Law Act 1975 defines Family Dispute Resolution (FDR) as:
“a process in which a Family Dispute Resolution Practitioner (FDRP) helps people affected or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other” (Section 10F Family Law Act 1975 (C’th); and in which the practitioner is independent of all the parties.
The law requires separating families who have a dispute about children, to make a genuine effort to try to come to an agreement through FDR before filing an application for Parenting Orders in court (including seeking changes to existing orders). There are some exceptions to this requirement, such as cases involving family violence, child abuse or urgency.
Unless an exemption applies (see below), parties seeking to have a parenting matter determined by a Family Law court will need to file a certificate from an accredited FDR practitioner. The certificate is issued under Section 60I of the Family Law Act 1975 and is commonly known as a Section 60I Certificate.
Where cases are suitable for FDR, a meeting of the people (or parties) in dispute, who are often the parents or carers, is facilitated by an independent third party FDRP. Parties have the opportunity to express their perspective and raise issues of concern. The FDRP facilitates a discussion in a structured process, looking to explore perspectives, ideas and the development of acceptable solutions and agreements. Any decisions made during FDR are not legally binding.
Role of FDRP
FDRPs facilitate negotiations as a neutral third party. they are impartial and do not take sides. Neither do they act as support, agent or representative for either party. It is not the role of the FDRP to provide legal advice. However, they may extend to advocate on behalf of a child’s best interests (as their primary consideration) in an advisory capacity. Their role ensures parties are able to effectively use the process and negotiate. This may include providing legal information and referral to services.
FDR is not counselling. FDR concentrates on future focused problem solving, and resolving specific issues and disputes. Also, it is not the role of the FDR practitioner to give people legal advice.
The FDRP manages the process, and facilitates negotiation by supporting the:
- meaningful and good faith participation of parties
- exploration of ideas and options
- reality testing of possible solutions
- development of durable and sustainable decisions and agreements in writing.
FDR for Parenting Matters
For disputes/issues about parenting during/after separation, FDRPs assist by working in a child-focused way, keeping children’s best interests’ paramount. Examples of parenting topics can include:
- Time arrangements for children.
- How parents communicate about children.
- How parents make decisions about children.
- Managing their separated parental relationship.
- Agreements about sport or other activities.
- Agreements about travel or holidays.
- Decisions about school, medical or health or religion.
- Financial support of children.
FDR for Property Matters
For disputes/issues about property matters, FDRPs can help parties to negotiate their financial arrangements including; identifying their property pool, understand it, value it and make decisions around its division. An outcome can include a property agreement detailing how property will be divided and a process for finalising and legalising arrangements
Exemptions to FDR
The Family Law Act 1975 lists exceptions to the requirement to attempt FDR before making an application for a Parenting Order. Some of the main exceptions include:
- Where a person is applying for procedural orders, interim orders or Consent Orders.
- Where the matter is urgent.
- If the court has reasonable grounds to believe that:
- family violence or child abuse has occurred, or
- there is a risk of violence or child abuse if there was to be a delay
- Where it is not practical for the person to participate in FDR, for example, incapacity, physical remoteness or some other reason.
- Where a person has contravened and shown a serious disregard for a court order made in the last 12 months.
A person in these situations can apply to a lawyer for an exemption to FDR and then apply directly to the Family Court for a Parenting Order.