Since its inception the Family Law Act 1975 (the Act) has included provisions about litigants undertaking Family Dispute Resolution (FDR). Litigation in Australian courts is based on an adversarial system and unfortunately it is a system that encourages animosity and competition between parties. This is particularly problematic in family law disputes where high conflict can have a significant adverse effect on children. Despite court orders preventing parents from discussing family law matters with their children litigation is still likely to expose children to high level of conflict.
Family law, perhaps more than any other kind of law, is focussed on the future. Where children are involved, parties have to agree to an ongoing relationship for the purposes of raising their children post separation. This contradicts the basic principle that courts implement when resolving other civil disputes which is to, as far as possible, avoid a court order that will require the ongoing cooperation of the parties. Agreements reached through FDR are more likely to be acceptable to parties than a court order imposed on them and should be the goal for resolving your family law matter
There are thousands of cases in court lists where parties are waiting for their day in court. The system relies on some parties being able to resolve their disputes because there are not enough resources to run trials for every proceeding that is issued in the court. FDR encourages parties to compromise and work together to come to an agreement. This is often a shorter process than going to trial and will be more future focussed than going to court because no findings of fact about the past have to be made.
What is Family Dispute Resolution?
FDR is a dispute resolution process where a third party, the Family Dispute Resolution Practitioner (‘FDRP’) assists family members to communicate about issues and identify possible solutions. The Act makes FDR compulsory for parties who wish to make an application for a parenting order; section 60I states that parties must make a genuine effort to resolve their dispute before applying to the court.
The section 60I requirement is more than mere negotiations through a lawyer or otherwise; section 60I requires parties to obtain a certificate from a FDRP to demonstrate that a genuine attempt was made. A certificate must be obtained from an accredited FDRP. The FDRP cannot be called as a witness and everything said within FDR is confidential, unless it poses a risk to a person’s life or discloses child abuse or a risk of child abuse.
There are five types of certificates a FDRP can issue:
1. One party failed to attend because of the other parties refusal or failure to attend;
2. One party did not attend because the FDRP considers that the circumstances are not appropriate for dispute resolution;
3. Both parties attended but one or both did not make a genuine effort to resolve the issues;
4. Both parties attended and made a genuine effort to resolve the issues;
5. Both parties attended but the FDRP considers that in the circumstances it was not appropriate to continue.
The court will not make a parenting order unless the parties have filed a section 60I certificate or one of the following exceptions apply:
1. You are applying for a consent order;
2. There are reasonable grounds for the court to believe that there has been or there is a risk of abuse to a child involved in proceedings;
3. There are reasonable grounds for the court to believe that there has been or there is a risk of family violence by one of the parties to the proceedings;
4. There are circumstances of urgency;
5. One of the parties to the proceedings is unable to participate effectively in the dispute resolution because of physical remoteness or some kind of incapacity.
If you do rely on one of the above exceptions, then in some cases the court will consider whether the exception is valid and if an order ought to be made requiring the parties to attend before it can hear and determine the parenting orders sought
FDR is more than a procedural prerequisite to making an application for parenting orders; it is an opportunity to resolve your dispute without the cost and stress of litigation. However, even after a section 60I certificate has been issued there remains many opportunities for negotiation on the path to trial. It is important to seek legal advice so that you can make an informed decision about the options available to you to resolve your dispute.