Navigating family law disputes can be an emotionally challenging and legally complex process. Whether the matter involves parenting arrangements, property division, or concerns involving family violence, it is often essential to explore alternative dispute resolution methods before resorting to court litigation.
In most circumstances, parties are required to participate in Family Dispute Resolution (FDR) prior to filing applications in the Federal Circuit and Family Court of Australia.
What is Family Dispute Resolution (FDR)?
FDR is define by section 10F of the Family Law Act 1975 (Cth) (‘Family Law Act’) FDR helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other, or it helps persons who many apply for a parenting order under section 65C Family Law Act 1975 (Cth) to resolve some or all of their disputes with each other relating to the care of children.
FDR is a structured form of mediation aimed at assisting separating families to amicably resolve disputes. This process provides an opportunity to avoid court proceedings by facilitating constructive discussions.
FDR is conducted by a qualified and impartial third party—a Family Dispute Resolution Practitioner (FDRP)—who assists parties in communicating effectively, identifying key issues in dispute, exploring potential solutions, and guide parties toward mutually acceptable outcomes. The FDRP is independent of all of the parties involved in the process.
Section 60I Certificate
Under section 60I of the Family Law Act 1975 (Cth), parties must attempt FDR as a precondition to filing parenting proceedings, unless an exemption applies.
If an agreement cannot be reached or FDR is determined to be inappropriate, the FDRP can issue a Section 60I certificate. This certificate is a necessary document to commence parenting proceedings in the Family Court. There are five types of Section 60I certificates that the practitioner may issue:
- The other party refused or failed to attend FDR.
- FDR was deemed inappropriate in the circumstances.
- Both parties attended and made a genuine effort to resolve the issues.
- Both parties attended, but one or both did not make a genuine effort.
- FDR was commenced but could not be completed.
Exemptions
In certain situations, parties may proceed with parenting orders without obtaining a section 60I certificate. These exemptions are listed in section 60I(9) of the Family Law Act 1975 (Cth). Some of the exemptions include:
- When the parties reach an agreement and apply for consent orders.
- When responding to an application initiated by the other party relating to parenting matters.
- When the Court is satisfied there are reasonable grounds to believe:
- The child has been subjected to abuse by one of the parties.
- A delay in applying could expose the child to a risk of abuse.
- Family violence has occurred or there is a risk of it occurring.
- When the application is made in circumstances of urgency.
- When one or more parties to the proceedings are unable to effectively participate in family dispute resolution due to factors such as incapacity, physical remoteness from dispute resolution services, or for some other reason.
What happens during FDR?
The FDR process typically begins with a pre-mediation intake assessment of each party. During this stage, the FDRP assesses whether mediations is suitable and considers factors such as power imbalances, safety concerns, or instances of family violence.
If FDR is deemed appropriate, a joint mediation session is organised, which may be conducted in person, online, or via telephone. During the session, the FDRP facilitates discussions, ensures fair participation, and assists in resolving disagreements.
If an agreement is reached, it can be documented and later formalised by applying for Consent Orders in the Federal Circuit and Family Court of Australia.
If an agreement is not reached, then the FDRP will issue a section 60I certificate, which is necessary to commence court proceedings.
Benefits of Family Dispute Resolution
When deemed suitable, FDR offers numerous advantages:
- Efficiency and Accessibility
FDR allows disputes to be resolved in a shorter timeframe compared to protracted court proceedings. - Cost-Effective
The process is generally less expensive than litigation, reducing financial strain on both parties. - Reduced Adversarial Tension
By prioritising co-operation and dialogue, FDR helps mitigate emotional stress and limits the escalation of conflict. - Child-Focused Outcomes
The process encourages solutions that place the child’s best interests at the forefront, fostering agreements that support their wellbeing. - Forward-Looking Resolutions
FDR encourages parties to move beyond past grievance and focus on constructive, future-oriented outcomes.
FDR represents a practical, cooperative pathway for families to resolve disputes in a supportive and less adversarial environment. While not suitable for all situations, FDR provides an effective resolution framework for many families, avoiding the emotional and financial strains associated with litigation and prioritising the wellbeing of children.
The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our experienced team of family lawyers is here to provide guidance. We can assist you in navigating the complexities of FDR and achieving a resolution that safeguards your interests and supports the wellbeing of your family. Our team can be contacted on (03) 9311 8911.
