What is Family Dispute Resolution?
Family Dispute Resolution (FDR) is a process whereby an independent, impartial and neutral third party, the Family Dispute Resolution Practitioner, assists parties to negotiate and reach an agreement. Effectively, FDR is a form of mediation conducted by an FDR Practitioner.
Is Family Dispute Resolution Compulsory?
Under the Family Law Rules, all parties in a family law matter must make a genuine effort to resolve their dispute through dispute resolution before seeking court intervention. In parenting disputes, FDR is compulsory. Parties must obtain a section 60I certificate from a registered FDR practitioner stating that they participated in FDR before lodging an application with the court.
When is Family Dispute Resolution Not Required?
You may be exempted from participating in a dispute resolution process before going to court in the following circumstances:
- Where the matter is urgent;
- If the case involves family violence or child abuse;
- Where there is a genuinely intractable dispute;
- In cases involving fraud; or
- Where the time limit to file is close to expiring.
Do I Need a Lawyer for Family Dispute Resolution?
You are not required to be legally represented during any dispute resolution processes, but you may engage a lawyer if you wish to.
Either way, it is recommended that you seek legal advice before participating in FDR. A lawyer will advise you of your legal rights according to your circumstances and recommend or refer you to a particular dispute resolution service that is best suited to your dispute.
Other Dispute Resolution Services
FDR is not compulsory in property disputes; however, you are still required to make a genuine effort to resolve your dispute before going to court. There are a range of non-judicial or alternative dispute resolution (ADR) services, such as counselling, mediation or arbitration, which you may choose to participate in to resolve your dispute.
Mediation is a process where the parties to a dispute are assisted by the Mediator, an independent, impartial and neutral third party who helps facilitate negotiations but does not offer advice or make determinations.
Arbitration is a process in which parties present evidence and arguments to an arbitrator, who hears the dispute and makes a binding decision. Arbitration can only be used for property and financial disputes.
A family counsellor uses a range of psychotherapeutic and psychological theories and advanced interpersonal skills to help you and your partner understand and improve your relationships and deal with issues arising from separation, parenting arrangements or property disputes.
Counselling is a voluntary process, although compulsory counselling is required if you are seeking a divorce where you have been married for less than two years.
Who Pays for Dispute Resolution?
If you participate in FDR or other private dispute resolution processes, you will be required to pay any associated costs. FDR is offered for free through Family Relationship Centres or the Court. The federal government also subsidises FDR services offered through various community-based services.
Is Dispute Resolution Confidential?
All communications and offers made during dispute resolution processes are confidential and inadmissible in court, except in circumstances where the dispute resolution practitioner is legally obligated to report a disclosure or a risk.
What Happens if you Reach an Agreement?
Generally, agreements reached during dispute resolution are not legally binding. You may choose to formalise your agreement in one of the following ways:
- Parenting Plan: This is a written agreement that sets out the parenting arrangements for your child. However, a parenting plan is not legally enforceable.
- Consent Orders: You may apply to the court to obtain court orders in the terms of the agreement. Consent orders are legally binding.
- Binding Financial Agreement (BFA): A BFA is a contract that sets out an agreement concerning the division of property and finances. A BFA will be legally enforceable if the proper processes are complied with.
However, if you reach an agreement at court-based FDR, the agreement is automatically binding, and the registrar will make court orders in the terms of the agreement. Or, if you participate in arbitration, the decision is binding, and the arbitrator will register the decision with the court.
Advantages of Dispute Resolution
Dispute resolution processes provide an efficient and cost-effective means of resolving parenting and property disputes. Dispute resolution processes are less adversarial than court and can help promote better relationships and communication between you and your partner. They also provide you with more flexibility and the opportunity to make your own decisions and, thus, enter into agreements best suited to your circumstances.
However, dispute resolution processes are not always appropriate, particularly where your dispute involves issues of violence or abuse or the relationship is one with a significant power imbalance.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.