A question I often get is “do I have to attend family dispute resolution?” The short answer is “no” but there may be exceptions.
If the Family Court orders that parties attend family dispute resolution you simply must attend. Here’s what you need to know about the process.
What is Family Dispute Resolution?
Family dispute resolution (FDR) is a formal process where, under the guidance of a professional family dispute resolution practitioner, a divorcing or separating couple attempt to resolve their disputes and agree the terms of their separation. It is a possible alternative (and opportunity) to taking their divorce settlement through the Family Courts where a Judge will have the ultimate say in the outcome.
Do I Have To Attend Family Dispute Resolution?
Under the family law in Australia, where children are involved parties must first attempt to resolve issues attending family dispute resolution. The purpose of this requirement is to encourage separating parents to find practical solutions that are suited to their own circumstances, paving the way for an amicable post-separation relationship.
Family dispute resolution is almost certainly the quickest, least stressful and least costly method of resolving arrangements for separating or divorcing couples.
Who Is Exempt From Attending Family Dispute Resolution?
There are situations where family dispute resolution may not be appropriate where parties are not required to attend family dispute resolution before commencing proceedings in children’s matters. These include:
- there is a history or a risk or threat of family violence or abuse to a child, causing one partner to feel unsafe in family dispute resolution;
- a matter of urgency requiring immediate action in the Family Court;
- either partner is unable to attend due to a mental illness, being incapacitated, or living in a remote area;
- where a party has contravened a previous court order in the past 12 months
In these cases a party may be issued with a certificate stating the reasons FDR has not taken place. This enables parties to proceed directly to the Family Court to seek parenting orders.
What Happens At Family Dispute Resolution?
Prior to the formal FDR session, the mediator (FDRP) will hold separate intake sessions with both parties to discuss the process, procedures, issues and possible resolution of their conflict. The family dispute resolution practitioner will first identify the points of dispute by listening to each party’s points of view. At the mediation session, the FDRP is permitted to provide general sound and unbiased legal guidance to both parties and to encourage them to seek pragmatic solutions that are fair, equitable and in the best interests of the children.
This may take a few sessions to complete, depending on the number and complexities of the disputes, and the parties’ willingness to resolve them.
If one partner feels intimidated by the other’s presence, the entire FDR process can also take place in separate rooms or by video link. Parties may also have their lawyer, or a close family member or friend present if this is agreed by the other party.
Both parties are required to disclose relevant information truthfully. All matters discussed at mediation remain strictly confidential and cannot be used as evidence in Court.
What Happens After Family Dispute Resolution?
If the disputes are resolved, the FDRP will draw up a draft agreement in the form of proposed Consent Orders, which either party may take to their own family lawyers for advice before finalising and filing in Court.
The signed agreement will then be submitted to the Court for approval together with an Application for Consent Orders.
A mediator may also assist parties to draw up a Parenting Plan setting out proposed arrangements for children.
If the parties are unable to reach agreement at family dispute resolution, they would have to their issues to the Family Court where a Judge will make the final decision.
What Happens If I Don’t Attend Family Dispute Resolution?
Obtaining legal advice is strongly recommended if you’re contemplating not attending family dispute resolution. Refusing to attend FDR will probably give your ex-partner no choice but to take the matter to the Family Court.
But, unless you fall within the limited range of exceptions, before you can commence proceedings in the Family Court you will have to obtain a certificate from an accredited FDR practitioner. The Certificate will state the reason why you or your ex did not attend. If you do not have a valid reason for not attending FDR, the Court will take this into account and may order you to pay the other party’s legal costs.
Ready to attend family dispute resolution in Perth?
Get in touch with me today for an obligation-free discussion and information about how I can help you as an accredited family dispute resolution practitioner in Perth.
