The family law system encourages parents and other interested parties to try and agree on arrangements for their children without having to go to court. Family Dispute Resolution (“FDR”) is a process that is a faster, less stressful and less expensive way for separating families to agree arrangements for their children with help from a FDR practitioner who can assist you to discuss those issues that you disagree about and look at ways to reach agreement.
What is FDR?
FDR is the legal term for services like mediation that help people affected by separation work out family disputes. FDR can help you to agree on a range of family issues relating to property and parenting.
Who can provide FDR?
FDR is provided by a range of individuals and organisations but only accredited FDR practitioners can issue certificates under the Family Law Act/Family Court Act. An accredited FDR practitioner is a person who meets the standards contained in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 and is accredited by the Attorney-General’s Department.
At Freedom Legal we can issue FDR certificates (Section 60I Family Law Act 1975 / Section 66H Family Court Act 1997)
Is FDR compulsory?
Unless exceptions apply, you can only apply to a family law court for a parenting order when you have an appropriate certificate from an accredited FDR practitioner. This is because there is a general requirement that you attempt to resolve a parenting dispute before commencing court proceedings.
What are the exceptions?
There are some exceptions to this requirement where:
• You are applying for consent orders
• You are responding to an application
• The matter is urgent
• There has been, or there is a risk of, family violence or child abuse
• A party is unable to participate effectively (eg due to incapacity or geographical location)
• A person has contravened and shown a serious disregard for a court order made in the last 12 months.
When applying to the court you will need to provide information to show that one of the exceptions applies to you.
A court may take into account the certificate when deciding whether to make an order referring you to FDR or to award costs against a person.
Who can go to FDR?
The people having the disagreement need to be involved in the FDR process. If no one objects, a support person or other family member can attend FDR with you or you may wish to attend with a lawyer.
What happens during FDR
Before FDR can commence, an assessment will be made to see whether FDR is suitable for your situation. The first party will attend an Intake Session and if it is appropriate, the second party will then be invited to attend an Intake Session. After this process has been completed, a decision is made as to whether FDR is appropriate.
FDR practitioners are impartial and do not take sides. They can help you to explore family issues in an objective and positive way. Unlike counselling, FDR does not focus on the emotional side of relationships. FDR focusses on resolving specific disputes.
FDR can help both of you to discuss issues and what is important to you, look at options and work out how best to reach agreement. Importantly, you can use FDR to develop a Parenting Plan to set out arrangements for your children. An FDR practitioner will also check that everyone understands what is being said and agreed upon.
When FDR is not working, the FDR practitioner can suggest other options, such as family counselling.
It is not the role of the FDR practitioner to provide legal advice.
Are things said at FDR confidential and can they be used in court?
Everything you say in front of an FDR practitioner is confidential – except in certain circumstances including preventing a threat to someone’s life or health or the commission of a crime. What is said during FDR cannot generally be used as evidence in court. However, an FDR practitioner must report child abuse or anything that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.
What if you are feeling unsafe?
It is important that you feel safe, and are safe before, during and after FDR.
If you have any concerns about your safety or the safety of your children, it may not be appropriate for FDR to proceed or proceed further or it may be appropriate for FDR to take place without parties being in the same room.
What happens to any agreement reached at FDR?
If you can agree on arrangements for your children, this can be recorded in what is called a Parenting Plan. This is a document that is written, dated and signed by both parents setting out parenting arrangements for children. They do not need to be approved by the court. They are not legally binding. They can be changed by agreeing to a new Parenting Plan.
Please note that changes to care arrangements can affect child support, income support and family assistance payments.
Special rules exist when including child support in a Parenting Plan. For example, if your Parenting Plan sets out amounts for child support, the Department of Human Services (Child Support) can enforce your agreement if it is also a valid child support agreement and the Department has been asked to accept it. We recommend that you obtain independent legal advice before including child support matters in a Parenting Plan.
If you want the terms of your Parenting Plan to be legally binding, you can jointly apply to the court for parenting orders by consent using a Form 11 Application for Consent Orders. A consent order is a written agreement between the parties that is approved by the court and has the same effect as a court order. They need to be submitted to the court for approval. They are legally binding. Unless a court orders otherwise, the parties can agree to change a parenting order by entering into a Parenting Plan.
What if FDR doesn’t work?
Even if you don’t reach agreement about everything FDR can help you communicate better and may reduce the number of things you disagree about. If you still need to go to court, you will need a certificate from an accredited FDR practitioner.
The certificate will say one of the following:
• The other party did not attend
• You and the other party attended and made a genuine effort to resolve the dispute
• You and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
• The FDR practitioner decided that your dispute was not appropriate for FDR
• The FDR practitioner decided that it was not appropriate to continue part way through the FDR process
You should note that if you do not attend FDR or make a genuine effort, this can influence the timing of your court hearing. The court may also order you to pay the other party’s legal costs.
Contact us today to assist you further.