The Importance of Dispute Resolution
FAMILY DISPUTE RESOLUTION
When the Federal Circuit and Family Court of Australia was established on 1 September 2021 it introduced a new Court structure and case management pathway that aimed to resolve disputes as “quickly, inexpensively and efficiently as possible.”
Emphasis is placed on providing opportunities for dispute resolution instead of lengthy and costly litigation.
Why Dispute Resolution?
The breakdown of a relationship is difficult and emotionally taxing for all those involved. It is not easy to speak rationally about dividing property or working out how much time the children will spend with each parent when the parties may still be experiencing the raw emotions related to the separation.
This is when an independent third party may be able to help the parties resolve any disputes by rationally and objectively taking the separated couple through the process of mediation.
Mediation can provide a more relaxed and collaborative approach to sorting out how the parties can move on. Although a cost is involved to instruct the mediator, it is unlikely that it will incur the legal costs of barristers and court time.
Family Dispute Resolution
Family Dispute Resolution (FDR) specifically arose to assist families in finalising workable agreements and resolving disputes about future arrangement for the children of the separating couple.
A Family Dispute Resolution Practitioner is an accredited professional with the appropriate skills to help couples focus on how to work through any disputes that may arise as well as helping them understand the importance of focusing on the needs of the children.
If the parents can work out a plan this can be formalised. A Parenting Plan is not enforceable but is a guide that assist the parents to manage the children’s lives when parents no longer live in the same home.
The plan can include methods of communication between the parties or where changeover will occur.
When there has been an acrimonious separation this is extremely useful as parents do not have to work out arrangements together which can reduce the amount of conflict and facilitate a gradual easing of tensions as the plan is followed.
Court Requirement for Resolving Parenting Issues
The website of the Federal Circuit and Family Court of Australia provides a very helpful guide to the processes and the procedure for parents to resolve their dispute about parenting issues.
The Court requires families to undertake FDR to make a genuine effort to resolve issues before any application can be filed at court for parenting orders.
Where there is family violence, child abuse or if there is urgency such as in a possible child abduction, exceptions to this will be allowed.
If the mediation is not successful then an accredited FDR practitioner can issue a certificate so that an application can be made to the court. The certificate is called a Section 60I certificate.
When completing an application to the court, parties must attach a copy of the s60I Certificate provided by a registered FDR Practitioner.
The Certificate can take one of 5 forms:
You did not attend FDR because the other party refused or failed to attend;
You did not attend because the mediator considered it inappropriate for FDR;
You did attend and the parties did make a genuine effort to resolve the issues;
You did attend and one or more of the parties did not make a genuine effort to resolve the issues;
You and the other party started the mediation process but the practitioner considered it inappropriate to continue.
Confidentiality
The FDR practitioner must report child abuse or any indication that a child is at risk of abuse. The FDR practitioner must also report a threat to a person’s life, health or if there is a possibility of a crime being committed.
Otherwise everything that is said during the FDR and in front of the FDR practitioner is confidential and must remain confidential.
Nothing from the FDR may be used in any Court proceedings.
What about Property?
Before applying to the Court for financial orders, parties must comply with pre-action procedures unless an exemption applies.
Pre-action procedures aim to see whether any financial issues in dispute can be resolved by agreement rather than going to court. Again this aims to reduce costs and avoid time-consuming delays which may arise in court procedures.
If parties can complete a manageable plan to divide their property at a mediation or FDR they can formalise this in an agreement which can be registered at the court.
To achieve this, the law requires that parties make full and frank disclosure in a timely manner. If either party fails to do so there may be serious financial consequences and in extreme cases penalties for contempt of court.
The parties are expected to be proactive in organising participation in dispute resolution and also be prepared to both make and consider any reasonable offers of settlement at any stage throughout the proceedings. Again, failure to do so may result in costs consequences.
Family Law Act – Section 81
In relation to property matters, this section of the Act states that the court should as far as is practicable make orders that will resolve and finalise financial matters and the financial relationship between the parties and avoid further proceedings.
Parties have a right to move on with their lives.
Dispute resolution as required by the Australian law seeks to facilitate separating families’ ability to do just that without the time, stress and cost of court proceedings.
Getting Help
If you have separated and are experiencing difficulties in resolving property and/or parenting matters, please do not hesitate to contact us so that we can help you work through the issues involved and assist you in preparing for FDR.
This article is for information purposes only. It is not legal advice and should not be relied on.