FAMILY LAW LEAPS FORWARD

PUBLISHED IN DOWNTOWN MAGAZINE, ISSUE 29 | Words by Stacey McAllan, Accredited Family Dispute Resolution Practitioner.


The Australian family law judicial system took an exciting leap forward on 1 September 2021 with the launch of the Federal Circuit and Family Court of Australia, and a fresh mission to change the culture and national conversation around family law.

One of the big game changers is the recent launch of the Federal Circuit and Family Court of Australia is the Court’s decision to champion Family Dispute Resolution and, in doing so, set the expectation that people going through separation, divorce or working through parenting matters should first attempt to settle family law disputes outside of the Courts.


The Court’s mandated requirement for parties to make genuine attempts to resolve their disputes together before filing documents in the Court isn’t necessarily a new concept (in actual fact it had always been encouraged), but certainly now plays a critical role in family law proceedings in Australia. It’s no secret that family law proceedings are exhausting, expensive, stressful and can be unpleasant for all involved. The beauty of Family Dispute Resolution is that it can play a big part in reducing these ugly side effects of family breakdown.


WHAT IS FAMILY DISPUTE RESOLUTION?

At its core, Family Dispute Resolution is a type of formal mediation focused on helping people involved in family law disputes to table key issues, encourage discussion and find solutions in a safe and supportive environment with the help of an impartial facilitator known as a Family Dispute Resolution Practitioner.


Family Dispute Resolution is not adversarial in nature, but rather about empowering people to work together, collaboratively toward a resolution on their own terms. In many cases, Family Dispute Resolution may help to preserve the relationship, or at least not escalate the conflict, which is important in situations where there is a continuing relationship.


THE ROLE OF A FAMILY DISPUTE RESOLUTION PRACTITIONER

A Family Dispute Resolution Practitioner (FDRP) is a specially-trained mediator who is skilled in negotiation and communication. They are impartial and independent to the mediation process and are there to help keep the integrity of the Family Dispute Resolution process and to support both parties to get the best out of the experience. FDRP’s are also specifically trained in responding to domestic and family violence and often come from a legal background.


WHAT’S INVOLVED?

One of the first things an FDRP will do is perform a screening and risk assessment of the people involved in the dispute. This begins with an ‘Intake Assessment’. The FDRP will meet with each person separately and determine whether each party can negotiate freely, without being affected by matters such as family violence, equality of bargaining power, safety of the person and any children of the relationship and the emotional, psychological and physical health of the parties.


If the FDRP is satisfied that each person can partake in a mediation freely, then it will be determined that mediation is suitable and a mediation date will be set. The mediation may be in a setting where everyone is in the same room, or in different rooms, and the FDRP will go in between rooms to each person (this is known as a ‘shuttle mediation’).


On mediation day, the FDRP will keep the parties on topic to assist the parties themselves reaching an arrangement. They will do this by managing the communication between the parties to ensure that each person is understanding what the other is saying and that there is no miscommunication or misinterpretation. They will also ask questions to each party to assist in keeping the conversation flowing and will also keep track of what is being agreed and what else needs further discussion.


At the end of the mediation, the FDRP may help to draft up an agreement which may then be used to draft Consent Orders for lodgment with the Courts.


WHAT IF FAMILY DISPUTE RESOLUTION ISN’T SUITABLE?

Sometimes, an agreement can’t be reached between parties or it may be deemed unsafe for Family Dispute Resolution to be attempted due to other mitigating factors, such as a history of family violence in the relationship. In these instances, the Court will accept a s60i certificate for parenting matters and a genuine steps certificate for property settlement matters. Each of these certificates can be issued by an FDRP and satisfies the Court’s requirement for making a genuine attempt to resolve the dispute outside of the Court.



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