The Family Law Act defines Family Dispute Resolution as “a process in which a Family Dispute Resolution Practitioner (FDRP) helps people affected or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other” (Section 10F Family Law Act 1975 (C’th).
The law requires separating families who have a dispute about children to make a genuine effort to try to come to an agreement through Family Dispute Resolution before filing an application for Parenting Orders in court. There are some exceptions to this requirement, which are explained later.
Where cases are suitable for Family Dispute Resolution, a meeting of the people (or parties) in dispute, who are often the parents or carers, is facilitated by an independent third party FDRP. The parties have the opportunity to express their point of view and issues of concern.
The FDRP facilitates discussion of the ideas and the development of acceptable solutions and agreements. However, decisions made during Family Dispute Resolution are not legally binding.
One of the key benefits of Family Dispute Resolution is that the parties have the opportunity to make their own decisions and have input into parenting and financial arrangements that will suit their children and them. The process provides a forum where the parties participate by:
It’s important to know that FDRPs are impartial and do not take sides. Family Dispute Resolution is also not like counselling. It concentrates on future focused problem solving, and resolving specific issues and disputes.
When Family Dispute Resolution involves parenting matters, FDRPs can help people explore family issues in a child-focused way that keeps their children’s best interests at the forefront. Topics in a parenting agreement relate to parenting after separation. Common topics include:
For disputes about property matters, FDRPs can help parties negotiate their financial decision considering their interests. A property agreement details how property will be divided.
The Family Dispute Resolution process begins when one or both parties contact a service that provides FDR.
The first step in the process involves the FDRP meeting separately with the people involved in the dispute for an intake appointment, to ensure that each person has the capacity to negotiate and that all parties feel and are safe to participate in Family Dispute Resolution.
Where one party only has initiated Family Dispute Resolution, the FDR service contacts and invites the second party to participate in FDR. In this case, the invited party needs to respond to the service that has contacted them. They can do so by attending the intake appointment, making another time, or they can consult a lawyer about a potential exemption from the process, as detailed above, and inform the service of this.
During the initial individual appointments, the FDRP will explain the Family Dispute Resolution process and ask each party questions to find out what they want to resolve, how communication has been between the adults, what the children’s needs are, and identify any other issues that could affect a person’s ability to safely participate in FDR. For example, they will ask questions about mental health, substance use and family violence.
Following the individual intake appointments, the FDRP decides whether Family Dispute Resolution is suitable, and if it is, how to provide it in a way that everyone feels safe and comfortable. For example, they consider whether it will work best for all parties to be together in one room or to have separate rooms for each party, whether to have one or two FDRPs present, whether to use an interpreter, and whether to offer a Family Dispute Resolution service by telephone.
The FDRP may also discuss additional models of FDR, including:
Lawyer assisted Family Dispute Resolution. This usually involves both parties being represented by a lawyer during FDR.
Family Dispute Resolution with a support worker or other support person present during sessions. This must be negotiated with the FDRP in advance and generally needs to be agreed to by the other party.
Child inclusive practice. This involves a trained child consultant providing feedback on how the children are experiencing the separation/parenting arrangements (for parenting matters only).
For parenting matters, if the FDRP decides not to proceed with Family Dispute Resolution, they can issue a certificate that parents are required to have before proceeding with any further legal action, such as going to court. There are a number of different certificates that can be issued, depending on the circumstances.
In property matters, the FDRP will also decide whether or not to proceed with Family Dispute Resolution. Certificates do not need to be issued before proceeding with legal action for property matters.
At this stage, the FDRP may also provide one or both parties with referrals to other agencies, such as counselling, family violence or other specific services.
Family Dispute Resolution is a structured process that involves the following steps:
The outcomes of Family Dispute Resolution can include the following.
It is helpful if all parties involved in the Family Dispute Resolution process can:
The Family Law Act 1975 lists the exceptions to the requirement to attempt FDR before making an application for a Parenting Order. Some of the main exceptions are as follows:
A person in these situations can apply to a lawyer for an exemption to Family Dispute Resolution and then apply directly to the Family Court for a Parenting Order.
Relationships Australia Victoria (RAV) provides Family Dispute Resolution, including child inclusive FDR, and FDR for property matters. Click here for more information. RAV also facilitates professional development training for FDRPs and as well as a mediation training short course.