Parenting Matters and Mandatory Family Dispute Resolution

The Family Law Act 1975 (the Act) requires that separated parties make a genuine effort to avoid litigation (going to Court) and instead attempt to resolve their disputes by a process known as Family Dispute Resolution (FDR).  FDR is a process whereby an independent, registered FDR practitioner helps parties affected by separation or divorce to resolve some, or all, of their issues regarding property and/or parenting matters.

While the Courts encourage the use of FDR in relation to property matters, it’s use is mandatory only in relation to parenting matters.  In parenting matters, the Court will only accept an application for parenting orders where the parties can demonstrate that they have attended  (or attempted to attend) FDR and obtained a certificate from a registered FDR practitioner.

The FDR Process

FDR is a confidential process whereby each party (e.g. you and your former spouse) will individually meet the FDR practitioner, who will assess whether or not your matter is suitable for mediation. If mediation is deemed suitable, the parties will then meet together with the FDR practitioner, for a joint session where they will be guided through the mediation process and attempt to reach an agreement.

Once you have completed the FDR process, regardless of whether you have been able to reach an agreement, the FDR practitioner will provide the required certificate.  This certificate will also be provided in the event the other party refuses to attend FDR.

There are many advantages to pursuing FDR over litigation, such as:

1. It is a much faster and less expensive process;
2. It is less stressful and intimidating;
3. It allows the parties to reach an agreement that benefits them both (and the Financial Institutions);
4. It allows the parties to narrow the issues in dispute in the event the matter does proceed to Court; and
5. It allows the parties to take control of their own matter (rather than being ordered to do something by the Court).

It is highly recommended that before you attend FDR, you obtain some initial legal advice so that you are aware of your legal rights, and those of your Financial Institutions and other party.  This can help you put forward proposals that are reasonable and in the best interests of the Financial Institutions.

Could I be exempt from the requirement to attend FDR?

The Act provides exemptions to the requirement to attend FDR, where:

1. There has been, or is a risk of, child abuse or family violence;
2. The matter is urgent;
3. One of the parties is unable to effectively participate (e.g. where a party may lack decision making capacity);
4. A party has contravened an order made in the past 12 months; or
5. The parties have resolved all the issues in dispute and are applying for consent orders.

To apply for an exemption, you will need to demonstrate to the Court how one of these situations applies to you.

If you have any queries in relation to parenting matters or the FDR process, or if would like to book an appointment with one of our experienced family law solicitors, please give us a call on 03 9088 3184.

Rose Hunt