Family Dispute Resolution
What is family dispute resolution?
Family dispute resolution is an umbrella term designed specifically for the Australian family law system. It encompasses almost all types and styles of independent and third party intervention that assist parties to reach agreement on their family law issues.
Engaging in family dispute resolution is now a prerequisite for making most applications for family law orders in court, although exceptions do apply.
Section 10F of the Family Law Act 1975 (Cth) covers both the conciliation and mediation processes. Professionals involved in a family dispute resolution process are referred to as family dispute resolution practitioners (or FDRPs).
Family dispute resolution practitioners must have suitable qualifications, training and experience, and pursue certain practices, in order to be accredited as such under the Act and Regulations.
A family dispute resolution practitioner must be registered with the Attorney-General’s Department to be accredited under the Act. It is strongly advised that you seek out a registered practitioner to provide your family law dispute resolution services, even if you do not intend to go to court.
Joint sessions of family dispute resolution
A joint family dispute resolution session may involve one or two practitioners, the parties and perhaps, if everyone agrees, their solicitors. A support person for a party can also attend if the other party agrees.
Joint sessions normally take up to four hours (though they can be much longer if they parties make agreement for this), or for more joint sessions to occur to complete the process over multiple issues.
At the start of a joint session, each party is asked to describe the issues that they seek to discuss and the outcomes they would like from the process. An agenda is then formed with all of the issues. Addressing one issue at a time, each party is given an opportunity to speak without interruption. The practitioner often summarises and restates the party’s position in neutral terms before allowing the other party to respond.
The practitioner helps the parties identify and investigate possible solutions for each issue. Areas of agreement may be reached and will be recorded. At the end of the session, parties are usually given an opportunity to take away or later receive a written record of these points of agreement.
Issues dealt with in family dispute resolution are usually those with practical, parenting, legal or financial implications, although techniques for more effective communication - particularly between separated parents - often feature in discussion. Parties can express their feelings in a controlled manner, but therapy is not the aim of family law family dispute resolution.
Agreements reached in family dispute resolution
Parties may opt to make a parenting plan, a family dispute resolution agreement or a signed memorandum of understanding as a written expression of agreement reached in a family dispute resolution. These types of agreements are not legally enforceable, but the parties can, if they wish, be filed in court in the form of consent orders, which are enforceable. These are usually prepared with the assistance of a solicitor.
Section 60I Certificates
In the event that no agreement is reached between the parties, the family dispute resolution practitioner may issue a certificate in accordance with section 60I of the Family Law Act 1975 (Cth). It is a requirement under the Family Law Act 1975 (Cth) that separation couples wanting to apply to the Court for a parenting order need to first indicate that a genuine effort to resolve the dispute by family dispute resolution has been attempted.
To show that a genuine attempt has been made the parties are required to obtain a “section 60I certificate”. Only registered Family Dispute Resolution Practitioners can issue a section 60I certificate.
There are five types of section 60I certificates that can be issued. These are:
You did not attend family dispute resolution because the other party refused or failed to attend;
You did not attend because the practitioner (mediator) considered that your circumstances were not appropriate for Family Dispute Resolution;
You did not attend and the parties did not make a genuine effort to resolve the issues; or
You did attend and the other party (or you) did not make a genuine effort to resolve the issues;
You and the other party started the mediation process, but the practitioner considered that it would not be appropriate to continue.
The Court requires that a copy of the Section 60I certificate be filed with the Court Application.