What is Family Dispute Resolution (FDR)?
FDR is the legal term for services that help parents and couples affected by relationship breakdowns to sort out family disputes. It is a specific form of mediation prescribed by the Family Law Act 1975. FDR can help people to agree on a range of issues relating to property, money, and most importantly – their children.
Who can provide FDR?
Family Dispute Resolution Practitioners (FDR practitioners) are accredited under the Family Law Act 1975 and registered as FDR practitioners in the register maintained by the Commonwealth Attorney-General’s Department.
Only accredited FDR practitioners can issue section 60I certificates under the Family Law Act 1975.
What is the role of an FDR practitioner?
FDR practitioners provide structured processes and facilitated negotiations for families regarding parenting, financial and property matters during a separation process. The FDR practitioner's role includes providing information, intake and assessment around the suitability and capacity of families to participate in the FDR process, and to manage the process, tailoring around individual needs.
Is FDR compulsory?
You can only apply to a family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states you have made a genuine effort to resolve your dispute.
The requirement to participate in FDR applies to new applications, and applications seeking changes to an existing parenting order. A certificate remains current for 12 months from the date of issuing.
A certificate is not necessary if you are applying to a family law court for a financial order only.
What are the exceptions?
There are some exceptions to the requirement to attend FDR, including where:
you are applying for consent orders
you are responding to an application
the matter is urgent
there has been, or there is a risk of, family violence or child abuse
a party is unable to participate effectively (for example, due to incapacity or geographical location), or
a person has contravened and shown a serious disregard for a court order made in the last 12 months.
When applying to the court, you will need to provide information to demonstrate that one of the exceptions applies to you.
Who can attend FDR?
The people having the disagreement need to be involved in the FDR process.
If agreed, a support person or an adult family member can attend with you. The role of the support person is not to actively take part in the FDR but to support you during the mediation. The support person will not usually be allowed to speak during FDR.
If agreed, we can also facilitate legally assisted FDR. This means that each party can bring their family lawyer with them to observe and provide legal advice during the process.
Will your child be included in FDR?
No, unless both parents have agreed to your child meeting separately with a Child Consultant as part of the child-inclusive FDR process.
What information does an FDR practitioner provide to clients?
Before you start FDR, your FDR practitioner must tell you about the FDR process, your rights, their qualifications, and the fees charged for their services.
If there is a possibility of reconciliation, your FDR practitioner must give you information about family counselling services.
If you are trying to resolve a disagreement about your children, your FDR practitioner must give you information about parenting plans and other services available to help you.
What happens during FDR?
Before FDR can begin, your FDR practitioner is required to assess whether the process is appropriate for your situation. They will meet with each client separately to assess whether it is, and, if it is, to decide how the process might be conducted most effectively.
FDR may not be appropriate for all disputes, particularly if one person is unable to negotiate freely because of another’s threats, violence or aggressive behaviour.
During FDR, the FDR practitioner may see each client separately, if they consider that it may be helpful, and also to ensure that the process remains appropriate.
FDR practitioners are impartial and independent. They can help you to explore family issues in an objective and positive way. Unlike counselling, FDR does not focus on the emotional side of relationships. It concentrates on resolving specific disputes and it is future focused. We encourage all clients to consider undertaking some form of therapeutic counselling.
Importantly, you can use FDR to develop a parenting plan to set out arrangements for your children. An FDR practitioner will also check that everyone understands what is being said and agreed upon.
When FDR is not working, the FDR practitioner can suggest other options, such as family counselling and other external support services.
Is FDR confidential?
Everything you say in front of an FDR practitioner during FDR is confidential – except in certain circumstances, such as to prevent a threat to someone's life or health or the commission of a crime.
What is said during FDR cannot be used as evidence in court. However, an FDR practitioner must report child abuse or anything that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.
What if you are feeling unsafe?
It is important that you feel safe, and that you are safe before, during and after FDR.
If you have any concerns about your safety or the safety of your children or any other person, you should tell your FDR practitioner immediately. This may mean that FDR stops or does not proceed.
Although there is no requirement to undertake FDR if there has been family violence or child abuse, many people still chose to engage in the process. It is possible to participate in FDR without being in the same room or even to see one another. This process is called “shuttle”.
Can I attend FDR if there is an intervention order?
If there is a current family violence order, you must show your FDR practitioner the document during your initial individual assessment to confirm that FDR is permitted under the terms of the order.
What happens to agreements reached at FDR?
If you reach agreement on arrangements for your children, these can be recorded in a parenting plan. A parenting plan must be in writing, and dated and signed by both parents. Your agreement or parenting plan can include mechanisms to change arrangements and resolve any future disagreements. Parenting plans can be renegotiated over time.
Be aware that any changes to the care arrangements for your children can affect child support, income support and family assistance payments.
If you want to make your parenting plan or financial agreement legally binding, you can apply to the court to have your agreement made into a consent order. You can do this yourself or ask your lawyer to do it for you. Financial agreements for property, superannuation, child support and maintenance may also be documented and made legally binding in other ways.
What if FDR doesn't work?
Even if you cannot reach any agreement, FDR may help you and your former partner communicate better. If you try FDR but still need to go to court for a parenting order, you will need a section 60I certificate from an accredited FDR practitioner.
The certificate will state one of the following:
the other party did not attend
you and the other party attended and made a genuine effort to resolve the dispute
you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
the FDR practitioner decided your case was not appropriate for FDR, or
the FDR practitioner decided it was not appropriate to continue part way through the FDR process.
If you do not attend FDR or make a genuine effort to attend, this can influence the timing of your court hearing. The court may order you to return to FDR or pay the other party's legal costs.
What will FDR cost?
Goldberg Family Law Mediation is a private FDR provider.
A capped fee is charged for each party’s initial individual assessment and, if FDR is considered appropriate, a fixed hourly rate is charged for all FDR sessions.
The duration of the FDR process is dependent on many factors including, but not limited to, the number of matters in dispute, the degree of negotiability and complexity. Some matters are concluded after one session whereas others may require two or more sessions, or further sessions may be scheduled periodically to monitor the suitability of agreements.
If the FDR process is conducted at our office, there is no additional venue charge. If part or all of the FDR process is to be conducted elsewhere, the parties are responsible for arranging a suitable venue at their expense. We reserve the right to charge reasonable travel and accommodation expenses.
If an FDR session is legally assisted, each party is responsible for the cost of their individual lawyer.
While the fees for each FDR session are usually shared equally, it is open to the participants to agree upon a different payment arrangement.
If you would like further information about FDR or the family law mediation services offered by Goldberg Family Law Mediation, or you would like us to deliver a presentation about FDR to your family law team at your office, please do not hesitate to contact us.