What is family dispute resolution?
Family dispute resolution (FDR) is a form of mediation for separating families. An accredited FDR practitioner is independent: they help participants identify the issues, consider options and try to reach their own agreement, but they do not take sides or decide the outcome.
FDR is commonly used for parenting disputes. Mediation and other dispute-resolution processes may also be used for property and financial matters, but the pre-action requirements are different. See the Attorney-General’s Department — Navigating family dispute resolution.
Do I have to try FDR before applying for parenting orders?
Before applying to the Federal Circuit and Family Court of Australia for parenting orders, a person generally must make a genuine effort to resolve the dispute through FDR. Unless an exemption applies, the application must include a current section 60I certificate issued by an accredited FDR practitioner.
The requirements depend on the type of application and the person’s circumstances. The Court explains the filing requirements in Compulsory pre-filing Family Dispute Resolution — court procedures and requirements.
What is a section 60I certificate?
A section 60I certificate records a prescribed outcome of the FDR process. For example, it may record that:
- another participant did not attend
- the practitioner considered FDR inappropriate
- the participants attended and made a genuine effort
- a participant did not make a genuine effort, or
- FDR began but the practitioner later considered it inappropriate to continue.
Only an accredited FDR practitioner can issue the certificate. A certificate is not the same as a Court exemption, and an FDR practitioner does not decide whether a statutory exemption applies.
When may FDR not be required or appropriate?
FDR is not automatically suitable or required in every parenting matter. Common circumstances in which a person may ask the Court for an exemption include:
- an urgent decision is required
- there are reasonable grounds to believe family violence or child abuse has occurred, or there is a relevant risk of violence or abuse
- a person cannot participate effectively, for example because of incapacity or physical remoteness
- the application seeks consent orders or responds to another person’s application, or
- the application concerns a qualifying recent contravention of a parenting order involving serious disregard of the order.
This is not an exhaustive list. The Court decides whether an exemption applies. Separately, the FDR practitioner must assess whether FDR is suitable and may determine that it should not begin or continue. The Attorney-General’s Department — Situations where you may not need to do FDR provides current general guidance.
If you or a child is in immediate danger, call 000. Safety concerns should be raised with the FDR service and your solicitor before arrangements are made.
What applies to financial or property matters?
A section 60I certificate is not required for an application seeking only financial or property orders. Different pre-action procedures apply. Prospective parties generally need to take genuine steps to resolve the dispute before proceedings start and file a Genuine Steps Certificate, unless an exception applies.
Mediation may be one appropriate way to take genuine steps, but it is not the only possible process and it may not be suitable where there are safety concerns or urgency. The Court sets out the requirements in the Family Law Practice Direction — Financial proceedings.
What happens during mediation?
The practitioner or mediator will first consider whether the process is suitable. If it proceeds, the participants identify the issues, exchange proposals and explore whether any matters can be agreed or narrowed. The process used will depend on the service, the dispute and any safety arrangements.
A solicitor may advise you before mediation and may attend where the mediation model allows it. The practitioner or mediator remains neutral and does not provide individual legal advice to either participant.
What happens if agreement is reached?
The way an agreement should be recorded depends on whether it concerns parenting, property, finances or a combination of issues. Although every matter is unique, and turns on its facts, typically, an agreement is crystallised by way of a consent order.
Obtain independent legal advice before signing or relying on an agreement so you understand its effect and whether further steps are required.
What if no agreement is reached?
FDR or mediation may still narrow the issues in dispute, even if a resolution is not reached. The process can still be beneficial to the parties, in taking steps to work towards an agreement. FDR or mediation may occur more than one occasion, and may ultimately lead to an agreement in the successive FDR or mediation. Legal advice can help you understand any remaining pre-action steps and whether a Court application or another dispute-resolution process is appropriate.
How can a family lawyer help with mediation?
A family lawyer can:
- explain whether parenting or financial pre-action requirements apply
- identify possible section 60I exemptions and urgent or safety issues
- help gather relevant information and prepare practical proposals
- advise before, during or after mediation, and
- advise whether an agreement reached is just and equitable, or in the best interests of your child/ren
- explain how a proposed agreement could be documented.
Where can I find an FDR practitioner?
You can search the Australian Government’s Family Dispute Resolution Register or use Family Relationships Online — Find local help. The Family Relationship Advice Line is available on 1800 050 321.
