FAMILY Dispute Resolution
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Family Dispute Resolution
Family Dispute Resolution (FDR) is a special type of mediation to help separating families come to their own agreements about parenting and property matters. During mediation, the parties will be assisted by a mediator who is an independent third party to help resolve the dispute.
Parenting
When it comes to parenting matters, in most cases, the Family Law Act 1975 requires you to obtain a certificate from a registered FDR practitioner before you file an application to the Court for a parenting order.
There are some exemptions to this which are contained in section 60I(9) of the Family Law Act 1975, namely:
- If your matter is urgent;
- If the Court is satisfied that there are reasonable grounds to believe that:
- There has been child abuse and/or family violence by a party;
- There is a risk of family violence by a party; or
- There is a risk of child abuse if there were to be delay in applying to the Court.
- Where a party is unable to participate effectively in FDR (for example, due to an incapacity or physical remoteness from an FDR provider); and
- If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.
You will still need to apply to the Court for an exemption and provide evidence as to why you believe that your matter falls within one of the exemptions contained in section 60I(9) of the Family Law Act 1975.
For parties who do not fall within one of the exemptions, they will need to participate in FDR and make a genuine effort to resolve their dispute. Once the parties have participated in FDR, the FDR practitioner will issue the parties with a “section 60i certificate” which will need to be filed with any application to the Court. The FDR practitioner will also indicate on the section 60i certificate whether the parties made a genuine effort to resolve their dispute. If one, or both parties did not make a genuine effort during the FDR, the Court may take this into account when deciding if a costs order should be made against a person.
FDR can be accessed through government agencies, such as Family Relationship Centers or Family Relationships Online or with an accredited Family Dispute Resolution Practitioner. Lawyers are generally not permitted to attend a mediation that has been organised with a Family Relationship Centre or Family Relationships Online. However, your lawyer can attend with you at a mediation organised through a private Family Dispute Resolution Practitioner.
It is always a good idea to get legal advice before attending FDR, so you are aware of your legal rights, and those of your children and the other party. This can help you put forward proposals that are reasonable and in the best interests of your children.
Property
When it comes to filing an application to the Court for a property matter only, mediation is not mandatory and the Court does not require a section 60i certificate. However, the Court strongly encourage parties to try and resolve their property matters with FDR before commencing proceedings.
FDR in property matters not only encompasses mediation but also includes arbitration and conciliation conferences. Arbitration provides a good alternative for party’s who wish to resolve their property without the need for litigation and settle their matters quickly and in a cost-effective way. Arbitration, in a family law context, is usually more suitable for simple matters which involve a modest asset pool. The parties will jointly choose their Arbitrator based on their individual needs and the issues in dispute. It is a consensual process where parties reach an agreement between themselves and have a higher level of control over the process and the degree of formality. The decision of the Arbitrator is binding and there are limited rights to appeal the decision.
If the parties file an application to Court, and the property pool is less than $500,000, the Court will usually require the parties to undertake a conciliation conference, regardless of whether the parties have previously attended a mediation. A conciliation conference is like mediation, but the mediator is a Registrar of the Federal Circuit Court. If either party has a lawyer, then the lawyer can also attend the conciliation conference. The Court may also order the parties to attend mediation, with a Family Dispute Resolution Practitioner. The Court will always encourage, and favour, parties to try resolve the matter between themselves.
There are many advantages to pursuing FDR over litigation:
- It is a much faster and less expensive process;
- It is less stressful and intimidating;
- It allows the parties to reach an agreement that benefits them both (and their children);
- It allows the parties to narrow the issues in dispute in the event the matter does proceed to Court; and
- It allows the parties to take control of their own matter (rather than being ordered by the Court).
Whilst the courts and many practitioners may favour resolving matters through FDR, it is not always appropriate and may not be beneficial, particularly if either party is unwilling to compromise or you are unable to communicate with your former spouse. If you elect to participate in FDR through a Family Relationship Centre, it can take several months before you are able to participate in a mediation.
To get the most out of your mediation, it is always a good idea to get independent legal advice beforehand and ensure that the parties have complied with their disclosure obligations. This ensure that the parties understand what assets and liabilities are in the asset pool and can help you understand your rights and the rights of the other party and maximise your chances of resolving your property matters.
For specialist property advice from a family law lawyer, contact us by phoning (07) 5522 5777.
Property
When it comes to filing an application to the Court for a property matter only, mediation is not mandatory and the Court does not require a section 60i certificate. However, the Court strongly encourage parties to try and resolve their property matters with FDR before commencing proceedings.
FDR in property matters not only encompasses mediation but also includes arbitration and conciliation conferences. Arbitration provides a good alternative for party’s who wish to resolve their property without the need for litigation and settle their matters quickly and in a cost-effective way. Arbitration, in a family law context, is usually more suitable for simple matters which involve a modest asset pool. The parties will jointly choose their Arbitrator based on their individual needs and the issues in dispute. It is a consensual process where parties reach an agreement between themselves and have a higher level of control over the process and the degree of formality. The decision of the Arbitrator is binding and there are limited rights to appeal the decision.
If the parties file an application to Court, and the property pool is less than $500,000, the Court will usually require the parties to undertake a conciliation conference, regardless of whether the parties have previously attended a mediation. A conciliation conference is like mediation, but the mediator is a Registrar of the Federal Circuit Court. If either party has a lawyer, then the lawyer can also attend the conciliation conference. The Court may also order the parties to attend mediation, with a Family Dispute Resolution Practitioner. The Court will always encourage, and favour, parties to try resolve the matter between themselves.
There are many advantages to pursuing FDR over litigation:
- It is a much faster and less expensive process;
- It is less stressful and intimidating;
- It allows the parties to reach an agreement that benefits them both (and their children);
- It allows the parties to narrow the issues in dispute in the event the matter does proceed to Court; and
- It allows the parties to take control of their own matter (rather than being ordered by the Court).
Whilst the courts and many practitioners may favour resolving matters through FDR, it is not always appropriate and may not be beneficial, particularly if either party is unwilling to compromise or you are unable to communicate with your former spouse. If you elect to participate in FDR through a Family Relationship Centre, it can take several months before you are able to participate in a mediation.
To get the most out of your mediation, it is always a good idea to get independent legal advice beforehand and ensure that the parties have complied with their disclosure obligations. This ensure that the parties understand what assets and liabilities are in the asset pool and can help you understand your rights and the rights of the other party and maximise your chances of resolving your property matters.
For specialist property advice from a family law lawyer, contact us by phoning (07) 5522 5777.