Family Dispute Resolution Requirements in Family Law

By Carmel Morrison, Senior Associate

Family law regimes in Australia encourage separated parties to make a genuine effort to avoid going to Court by engaging in litigation as a last resort. In certain circumstances parties are obliged to attempt resolution of their disputes by a process known as Family Dispute Resolution (“FDR”). It is generally accepted that this includes negotiations through lawyers.

The FDR process involves a registered and independent FDR practitioner who will help separated parties resolve as many of their issues, both property and/or parenting, as possible. These practitioners are legally trained in accordance with strict training and national registration requirements.

Whilst encouraged, the FDR process is not mandatory where the dispute involves only property. FDR is however mandatory for parenting and children’s disputes.   

Subject to the exceptions below, it is therefore only possible to file an application in a parenting matter if you have obtained a s60I Certificate from an FDR registered practitioner.

When is a s60I Certificate Not Required?

There are certain circumstances in which a s60I Certificate does not need to be provided. For example, where the Application relates to the following:

• Financial/Property settlement orders only;
• Consent orders;
• Hague Abduction Convention orders;
• Child support; or
• If it is an amended application that relates to a child who is the subject of a current application.

Exceptions to the Requirement of a s60I Certificate

There are certain exceptions to the requirement to provide a s60I Certificate. These exceptions are set out under section 60I(9) of the Act for the following circumstances:

• Where there is urgency;
• Where the Court could find there are reasonable grounds to believe that there has been child abuse and/or family violence by a party or there is a current;
• Where there would be a risk of child abuse if the hearing of the application were delayed;
• Where a party cannot participate effectively in FDR due to an incapacity (e.g. physical, sensory or cognitive) or because of physical remoteness from the FDR provider;
• Where there is an application relating to alleged contraventions of an existing Order made within the last twelve months or there are reasonable grounds to believe the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

The Family Dispute Resolution Process

The FDR process is confidential and FDR practitioners are independent. They are highly trained and must be registered nationally to be able to work in this field. They will assess what it is that the parties wish to discuss and the parameters of the dispute that is to be resolved, with an intake process to decide whether each matter is in fact suitable for FDR. 

If it is decided that the FDR process is likely to be of use in a particular case, the parties may attend separate or joint sessions, where the FDR practitioner guides the parties through the process in an attempt to reach an agreement. 

There are many kinds of FDR processes available and it is important that you obtain independent legal advice before taking part in the process.  MST’s very experienced legal practitioners can assist you in the following areas:

• choosing the most appropriate FDR process for your needs;
• providing general advice and guidance for your specific situation;
• helping you to prepare for the FDR process including formulating an agenda for discussion;
• advising you in relation to the best and most practical outcomes for you as a result of the FDR process.

Following the FDR process, the FDR practitioner will provide a certificate regardless of whether agreement has been reached.    This certificate can also be provided if the FDR practitioner determines that the dispute is not suited to the FDR process, or one party does not wish to attend or refuses to attend FDR.

Advantages of Family Dispute Resolution

The FDR process provides many advantages and benefits that court proceedings do not. These advantages are as follows:

• It is faster that the court process;
• It is significantly less costly than the court process;
• It is generally less stressful and intimidating and aims to provide an equal platform with minimal power imbalances which would otherwise prevent a party being able to express themselves freely;
• It aims at allowing a party to self-determine the outcome;
• It allows parties with an opportunity to reach the best possible arrangements for them and allows a far greater scope of arrangements than would be possible as a result of a Court hearing. The best way to describe this is that it allows participants to formulate and agree on arrangements that are best for their family and children;
• The flexibility is far greater and allows for more creative arrangements and resolutions to be put into place;
• Participants can prepare an agenda which narrows the issues and concerns that they want to discuss; and
• Above all, it allows parties to take control of the decisions concerning their lives, rather than being forced to adhere to orders made by a court and which orders will not necessarily be as accommodating of any particular needs that the parties may have.

MST Lawyers can help you understand the FDR process and the outcomes you can expect. We can help you prepare for FDR so that you maximise the benefits from the process.

If you have any queries, we invite you to contact our highly experienced Family Law team who will be happy to assist you either by telephone, Zoom or face-to-face meetings.  Please call us on +61 3 8540 0200.