When parents separate, one of the most important decisions they need to make is how they will continue to care for and support their children.
Where possible, separating parents should try to reach an agreement about parenting arrangements without going to Court. The Family Law Act 1975 (Cth) requires most separating parents to make a genuine effort to resolve parenting disputes through Family Dispute Resolution (FDR) before applying to the Court for parenting orders.
Family Dispute Resolution, sometimes referred to as family law mediation, provides parents with an opportunity to discuss their concerns, explore solutions and create parenting arrangements that focus on the best interests of their children.
However, there are some circumstances where attending FDR may not be required, including situations involving family violence, child abuse or urgent matters.
What Is Family Dispute Resolution?
Family Dispute Resolution (FDR) is a type of mediation designed to help separated parents resolve disputes about their children without the need for Court proceedings.
FDR is conducted by an accredited Family Dispute Resolution Practitioner who helps parents communicate effectively, identify the issues in dispute and work towards practical parenting arrangements.
Accredited practitioners are listed on the Family Dispute Resolution Register, and services may be available through government-funded organisations, Family Relationship Centres and private practitioners.
A family lawyer can help you understand your options and assist you in preparing for the FDR process.
Why Is Family Dispute Resolution Important?
The purpose of FDR is to help parents resolve parenting issues without the stress, delay and expense of Court proceedings.
By working through issues with the assistance of an independent practitioner, parents may be able to reach an agreement about matters such as:
- Where the children will live;
- When children will spend time with each parent;
- How parents will communicate and make decisions;
- Arrangements for holidays, special occasions and school events; and
- Other important aspects of the children’s care and wellbeing.
The focus of FDR is always on the best interests of the children and creating arrangements that support their ongoing wellbeing.
Do I Need to Attend Family Dispute Resolution?
In most cases, parents must attempt Family Dispute Resolution before applying to the Court for parenting orders.
However, there are circumstances where FDR may not be required or may not be appropriate.
Examples include where:
- The parties are applying for consent orders;
- A party is responding to an existing Court application;
- The matter is urgent;
- There are allegations of family violence or child abuse;
- A person is unable to participate effectively because of location, incapacity or other circumstances; or
- The application relates to a serious contravention of an existing parenting order.
If a parent believes an exemption applies, they may need to provide evidence explaining the circumstances when making an application to the Court.
What Happens During Family Dispute Resolution?
During FDR, the practitioner assists both parents to communicate and negotiate in a structured environment.
The role of the practitioner is not to make decisions for the parents. Instead, they help identify the issues, encourage constructive discussion and assist the parties in exploring possible solutions.
Parents attending FDR should make a genuine effort to participate and consider options that support their children’s needs.
Support people may be able to attend in some circumstances. If you would like your lawyer involved, this should be discussed with the FDR practitioner before the mediation takes place.
Children do not usually attend FDR. However, in some cases, a child psychologist or family counsellor may speak with a child and provide information to assist the process.
Is Family Dispute Resolution Confidential?
Generally, discussions during FDR are confidential and cannot be used as evidence in Court if the matter later proceeds to litigation.
However, there are exceptions where information must be disclosed, including circumstances involving:
- Child abuse or a risk of child abuse;
- A risk of serious harm to a person; or
- The commission or prevention of a serious crime.
Your FDR practitioner can explain the confidentiality rules before the process begins.
How Much Does Family Dispute Resolution Cost?
The cost of attending FDR depends on the service provider and each person’s financial circumstances.
Government-funded services may have lower fees or be free depending on eligibility, while private practitioners generally charge professional fees.
In most cases, the cost of FDR is significantly lower than the cost of resolving parenting disputes through Court proceedings.
What Happens If an Agreement Is Reached?
If parents reach an agreement during FDR, the arrangements can be recorded in different ways depending on the circumstances.
Parenting Plans
A parenting plan is a written agreement between parents that sets out arrangements for their children.
Parenting plans are not legally enforceable, but they can be considered by the Court if a parent later applies for parenting orders.
Consent Orders
Alternatively, parents may apply for consent orders. Consent orders are legally binding and have the same effect as orders made by the Court after a hearing.
A lawyer can assist with preparing and filing consent orders to ensure the arrangements properly reflect the agreement reached.
What Happens If Family Dispute Resolution Does Not Work?
Not every parenting dispute can be resolved through FDR.
If an agreement cannot be reached, the FDR practitioner may issue a certificate confirming the outcome of the mediation.
The certificate may confirm that:
- Both parties attended and made a genuine effort to resolve the dispute;
- One party failed to attend;
- One or both parties did not make a genuine effort; or
- FDR was not appropriate in the circumstances.
Unless an exemption applies, failing to attend FDR may delay Court proceedings and may have cost consequences.
Going to Court for Parenting Orders
If parents cannot reach an agreement about parenting arrangements, it may be necessary to apply to the Court for parenting orders.
The Court’s primary consideration is always the best interests of the child.
When determining parenting matters, the Court considers issues including:
- The child’s safety and protection from harm;
- The benefit of children having meaningful relationships with their parents where safe to do so;
- The child’s individual needs and circumstances; and
- Arrangements that support the child’s overall wellbeing.
Every parenting matter is different, and the Court will consider the specific circumstances of each family.
How a Family Lawyer Can Help
Family Dispute Resolution can be a valuable way to resolve parenting disputes, but it is important to understand your rights and responsibilities before entering the process.
An experienced family lawyer can help you:
- Understand your legal options;
- Prepare for Family Dispute Resolution;
- Negotiate practical parenting arrangements;
- Prepare parenting plans or consent orders; and
- Apply for parenting orders where agreement cannot be reached.
Get Advice About Parenting Arrangements
If you are experiencing a parenting dispute or need advice about Family Dispute Resolution, our team can help you understand your options and work towards a solution that prioritises your children’s best interests.
Contact Somerville Laundry Lomax to arrange a consultation with our experienced family lawyers.
This article provides general information only and is not intended to be legal advice. Family law matters depend on your individual circumstances. You should obtain professional legal advice before taking any action.