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Family Law – dispute resolution

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Changes to the dispute resolution provisions have been phased in to the Family Law Act 1975 (the Act) since July 2007.  In cases where parenting disputes surface a party is first required to partake in the family dispute resolution process (FDR).  This process is a compulsory requirement before a parent can make an application to the Federal Magistrates’ Court or Family Court of Australia seeking parenting Orders.  

The purpose of the changes to the Act is to ensure that individuals who have a dispute about children’s matters make a genuine effort to resolve that dispute by family dispute resolution before making an application to the Court.

Under section 60I of the Act, a FDR practitioner may give various types of certificates to a person

  • A certificate to the effect that a person did not attend FDR with the other party to the proceedings and the FDR practitioner and such failure was due to the refusal or failure of the other party to attend
  • A certificate to the effect that a person did not attend FDR with the other party and the FDR practitioner because the practitioner considers having regard to the matters that it would not be appropriate to conduct the FDR
  • A certificate that the parties did attend FDR with the practitioners and they made genuine efforts to resolve the issues
  • A certificate that the parties attended FDR with the practitioner but that the person, or the party  did not make a genuine effort to resolve the issues
  • A certificate that the parties began attending the FDR with the practitioner and the other party but that the practitioner considers that it would be inappropriate to continue FDR.

There are some exceptions to the requirement of FDR.  These are:

  • If the parties seeking parenting orders are doing so by consent with the other
  • The Court is satisfied that there is reasonable grounds to believe that there has been abuse  or there is a risk  of abuse of the child/ren by one of the parties
  • There has been family violence by one of the parties
  • The Court is satisfied that there are reasonable grounds to believe that the person behaved in a way that shows serious disregard for his or her obligations under a Court Order
  • The application for a Court Order is made in circumstances of urgency.

Whilst there is no doubt that in some cases family dispute resolution can assist individuals who are experiencing separation and provide an alternative to going to Court. However, FDR practitioners have a role whereby they must evaluate the client’s performance during the mediation process. In cases where there is no history of violence or abuse, yet the parties’ differences are entrenched, one can query whether compulsory mediation is suitable in all cases.

If you have any questions in relation to this article or any family law matter please contact one of our Family lawyers for a confidential discussion.

Author: Natalia Todorovic

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