Family Law Mediation or FDR can help you and your former spouse or partner to agree on solutions that suit both of you – and your children. It’s practical, confidential, and it works!
You must try Family Dispute Resolution (FDR) before you go to court if children are involved. If you can resolve your differences, you’ll save time, money and a whole lot of stress.
Section 60I of the Family Law Act 1975 (the Act) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 provides that all persons who have a dispute about children (under Part VII of the Act) must make a genuine effort to resolve that dispute by Family Dispute Resolution before they can litigate.
In other words, anyone who is unable to resolve access arrangements must attempt mediation before they can go to court. You can only apply to a Family Law Court for a Parenting Order when you have a section 60I certificate. A Family Dispute Resolution practitioner is the only professional who is able to issue that certificate. Certificates can only be issued by FDR practitioners accredited under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. FDR practitioners must be registered with the Attorney Generals Department.
Parties intending to apply for financial and property orders are also encouraged to resolve disputed issues before filing an application.
The people having the disagreement need to be involved in the FDR process. If it is appropriate, you can bring a family member or a support person with you when engaging in mediation services, you can also include your solicitor in financial mediations.
If you are planning to bring any support person with you, you must firstly discuss this with your mediator and both parties to the mediation must agree to have support persons present.
No, children are not directly involved in FDR however we can refer parties to a family counsellor or psychologist who may talk with your child about their experience of the separation. We may recommend Child Inclusive Mediation if appropriate. This will only happen with parental consent.
Before you engage mediation services or FDR, your FDR practitioner must tell you about the FDR process, your rights (including your right to complain about the service), his or her qualifications, and fees charged.
If you are trying to resolve a disagreement about your children, the FDR practitioner must give you information about parenting plans and other services to help you.
It is important that parties are informed about their legal rights. Please collect any information and facts you need before the meeting.
Before FDR can commence, an assessment will be made to see whether FDR is suitable for your situation. FDR practitioners are impartial and will not take sides. Conversations in FDR are confidential (with limited exceptions). An FDR practitioner can help you to explore family issues in an objective and positive way. Unlike counselling, Family Dispute Resolution doesn’t focus on the emotional side of relationships. It is forward focused, concentrating on resolving specific disputes.
FDR can help both of you to discuss issues, look at options, and work out how best to reach agreement. Importantly, you can use FDR to develop a parenting plan, to set out arrangements for your children and for Financial Settlements. An FDR practitioner will check that everyone understands what is being said and agreed upon before agreements are documented.
When FDR isn’t working, the FDR practitioner can suggest other options or mediation services, such as family counselling.
Everything you say in front of an FDR practitioner is confidential – except in certain circumstances, such as to prevent a serious 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 said that indicates a child is at risk of abuse, and this may be used as evidence in some circumstances.
It’s important that you feel safe, and are safe before, during and after FDR. Your FDR practitioner will manage the mediation to ensure everyone has an opportunity to be heard, no one speak over anyone and that a respectful conversation is had.
If you need shuttle mediation (separate rooms) your FDR practitioner will organise that for you, we can also stager arrival and departure times if required.
Child Inclusive Mediation also known as CIP – Child Inclusive Practice, is an opportunity for children who are old enough to have a voice in their parents’ separation.
It is important to emphasise that during this process children are not asked adult questions or included in adult conversation. Instead a specially trained Child Mediator will engage the child using age appropriate play and conversations. This helps the child feel safe and engages the child to talk about their experience of their parent’s separation.
In the event you have both initiated mediation it is important to remember that you both have a right to do so. However, some mediation organisations will issue a (60I) certificate of nonattendance, even if the other party has initiated mediation elsewhere.
If possible, try to discuss the merit of each service and come to a mutual agreement about where to attend. Compare the services provided by each provider, time frames for finalising your agreement?
Do you need a financial settlement as well? can they work with you to the point of writing consent orders? do they offer Child Inclusive Mediation? are they a Child Focus practice? These are some of the things to take into considerations when making your decision.
The terms “Separation” and “Divorce” have very different meanings in the context of family law.
The term “separation” refers to when you have decided that the relationship is over. It is possible to be separated “under the same roof “, which is when you have separated but are still living together in the same house. It is important to agree on what the date of separation is as this may have implications on your legal rights.
As soon as you have separated you need to work out parenting arrangements for your children, how to deal with the on-going expenses relating to your children and work out the terms of a financial settlement between you regarding the split of your assets.
If you reach agreement in relation to your financial settlement, the agreement can be made legally binding by way of Consent Orders filed with the Family Court or a Binding Financial Agreement drafted by a solicitor. This can be done at any time after separation, you do not need to be “Divorced”.
‘Divorce’, on the other hand, is how you officially and legally end a marriage. You must have been separated for at least 12 months before you can apply to the Court for a divorce. Importantly, you can only file an Application for Consent Orders to formalise your financial agreement within 12 months of being officially divorced.