Separating couples should make reasonable attempts to agree on future living arrangements, care, and responsibility for their children. The Family Law Act 1975 (Cth) requires most parties to attend dispute resolution before they apply for parenting orders in the family law courts, unless exceptional circumstances apply.
In most cases, parties must obtain a certificate showing they attempted dispute resolution before they proceed to the Family Court. This requirement still applies even where existing orders already cover the child and a party seeks changes.
What is Family Dispute Resolution?
Family Dispute Resolution (FDR) is a mediation service provided by accredited Family Dispute Resolution Practitioners. These practitioners appear on the Family Dispute Resolution Register. In addition, services operate through individuals, Family Relationship Centres, and community organisations. Your lawyer can also help you find a practitioner near you.
The main goal of FDR is to resolve parenting matters without the stress, cost, and delay of court. Importantly, the child’s best interests remain the priority throughout the process.
If parties reach agreement, then they can create a parenting plan. Alternatively, they can file consent orders in court.
Do I need to attend FDR?
FDR is not required or suitable in every situation. However, exemptions apply where:
- parties apply for consent orders;
- a party responds to an existing court application;
- the matter is urgent;
- family violence or child abuse is involved;
- a party cannot participate due to incapacity or location;
- a recent breach of court orders shows serious disregard for obligations.
If a party seeks exemption, they must file an affidavit that explains the circumstances.
Going to Family Dispute Resolution
If parents cannot agree on arrangements, then they should attend FDR and participate in the process. Support persons or family members may attend as well. If you want a lawyer involved, you should discuss this with the practitioner before the session.
Usually, children do not attend. However, a family consultant or child psychologist may speak with the child and prepare a report if required.
During FDR, the practitioner helps both parties communicate and focus on the real issues. They also ensure each party understands the process and any agreement reached.
Although FDR is confidential, the practitioner must disclose information about child abuse, risk of harm, or serious criminal activity.
In most cases, costs vary depending on financial circumstances. However, FDR is still far cheaper than court proceedings.
What happens after an agreement?
If parties reach agreement, they can record it in a parenting plan. Parenting plans are not legally binding. However, courts may still consider them if disputes arise later.
Alternatively, parties can file consent orders. These orders are legally binding and enforceable. A lawyer can prepare and file them in court without requiring the parties to attend.
What if no agreement is reached?
If FDR does not resolve the dispute, then the practitioner issues a certificate. This certificate confirms attendance and genuine effort. Alternatively, it records that one party did not attend or did not participate in good faith.
In some cases, the certificate confirms that FDR was not appropriate.
If a party fails to attend without a valid reason, this may delay court proceedings or lead to cost consequences.
Going to Court
The Family Court has discretion in parenting matters. If parties cannot reach agreement, then either party may apply for court orders.
Importantly, the court always prioritises the best interests of the child. This means children:
- maintain a meaningful relationship with both parents where it is safe;
- remain protected from harm;
- receive parenting that supports their development.
Conclusion
In most cases, FDR is required before parenting proceedings begin. It helps parents reach agreement or narrow the issues in dispute.
However, in some situations, parties do not need to attend FDR, such as where family violence or risk of harm exists. A family lawyer can assess your situation and explain your options.
If you or someone you know wants more information or needs help or advice, please contact us on (03) 9422 5439 or email [email protected].
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