MEDIATION / FAMILY DISPUTE RESOLUTION
Most couples who are negotiating parenting arrangements, are aiming to avoid court. Family law assumes that you and your former partner (absent any extenuating circumstances that warrant cause for concern) are in the best position to decide what is in the best interests of your child or children.
Attempting dispute resolution outside of court can be the most cost effective and least stressful pathway to finalising your parenting (and property) matters.
It is now compulsory for parties to make a genuine effort to resolve issues at family dispute resolution (‘FDR’) before an application to the court can be filed. You will only be exempt from attending in the following circumstances:
- If your matter is urgent;
- If the court is satisfied that there are reasonable grounds to believe that:
- there has been child abuse and/or family violence by a party;
- there is a risk of family violence by a party; and/or
- there is a risk of child abuse if there were to be a delay in applying to the Court.
- Where a party is unable to participate effectively in FDR (for example, due to an incapacity to do so or physical remoteness from a FDR provider);
- If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that 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.
Once FDR has been attempted, a Section 60I Certificate will be issued to advise that a genuine attempt was made by both parties to resolve the matter, or that you are ‘exempt’ from attending because of the nature of your circumstances. Once you have a Section 60I Certificate, you can make an application to the court.
WHAT IS FAMILY DISPUTE RESOLUTION?
The process can be done through a public organisation (such as Relationships Australia), or the parties can elect to engage a private practice. There are cost savings associated with public practices; however, engaging a private practitioner can reduce the delay that is sometimes experienced with the public process.
Once engaged, the FDR practitioner will arrange a time for the parties to meet to assist the parties to communicate in a calm and professional environment. The aim of this process is to identify and work through issues without going to court. Practitioners do not take sides with either party or determine the result of the matter.
You and your spouse can deal with property matters simultaneously at FDR.
DOCUMENTING THE OUTCOME
If the parties are able to come to an agreement on the terms of parenting and/or property settlement, there is no legal requirement that you must formalise the agreement. However, most individuals elect to formalise future parenting, living and maintenance arrangements for your children and/or financial and property division.
An agreement, once reached, can be formalised by way of a:
There are many advantages and disadvantages associated with attempting to resolve your parenting arrangements outside of court.
- Going through the court process, especially to a final hearing, can be an expensive process. By coming to an agreement with minimal conflict, you will invariably minimise these expenses.
- You and your former partner will have more control over the outcome. If parenting orders are made by the court, you are effectively asking an independent third party to make a final determination about what is in the best interests of your child or children. Plainly, they do not know and understand your child or children the way that you do.
- You will have the opportunity to communicate with your former spouse about what is important for you moving forward. In that way, you are given an opportunity to be transparent, whilst having an independent practitioner there to ‘referee’ the communication. This might even harbour and/or promote a more co-operative co-parenting relationship moving forward.
You and your family are able to move on. When you have your personal affairs ‘tied up’ in court proceedings, your finances and autonomy can be effectively put on hold until the matters are resolved. A final determination can take in excess of two years.
As the FDR practitioner is independent, they can sometimes help by providing suggestions of acceptable solutions for you and your former spouse to consider together, and also provide some rational insight into whether either party is being unreasonable.
Often a heads of agreement will be drawn up at the conclusion of the sessions to record what has been agreed between the parties. The parties can then elect to have the heads of agreement incorporated into a parenting plan or parenting orders.
You and your former spouse are not automatically bound by any agreements reached if the terms of that agreement are not later documented formally.
Both parties must participate in the process. If you are unable to communicate with your former spouse, and either party is unwilling to compromise, the FDR process is likely to be unsuccessful.
If you resolve to participate through a public organisation, it can take a number of months before matters resolve.
At Ramsden Lawyers we can facilitate and/or refer you to the Gold Coast’s most experienced FDR practitioners. For more information or to find a suitable FDR provider, please call Family Relationships Advice Line on 1800 050 321. If, in the alternative, the matter is unable to be resolved by FDR, our family lawyers can assist you in beginning formal proceedings through the court.