The Family Law Act directs that you must attend Family Law Mediation or Family Dispute Resolution before you file an application for parenting orders or financial orders.
Family Dispute Resolution (FDR) is the legal term for services (such as mediation) that help people to sort out their disputes. It can help you to agree on matters relating to property, money, and your children. The FDR practitioner’s job is to assist you in discussing the issues and to work through your options to reach an agreement. They must be impartial. Before they start, they will assess whether your matter is suitable for FDR and tell you about the process, your rights, their qualifications, and the fees to be charged.
Everything said at the Family Law Mediation is confidential, except in exceptional circumstances, such as where there has been a threat to someone’s life or health or information regarding the commission of a crime. Nothing said can be used in court. Both parties must attend the mediation, and, if there are no objections, you can also have a support person. If you would like your lawyer to be present, you should discuss this with the centre arranging the mediation as it is not always allowed.
The Family Law Mediation practitioner will check that everyone understands what is being said and agreed upon. The service is provided by various organisations and contact details for accredited FDR practitioners can be found on the Family Dispute Resolution Register.
If Family Law Mediation does not resolve your matter, the FDR practitioner can suggest other avenues to help you resolve the issues, such as family counselling. If you can reach agreement, you should be aware that changes to your children’s care arrangements can affect your entitlements to family assistance and income support payments and to child support.
If you don’t attend FDR, or you do attend but do not make a genuine effort to reach an agreement, it can affect when your court hearing is listed. You may also be ordered to pay the other person’s legal costs.
After FDR you will be given a certificate proving that you have attended FDR to file with your application to the Court. You need this certificate even if you already have orders in relation to the children and want them changed.
Your FDR certificate will say either:
- the other party did not attend
- both attended and made a real effort to settle the dispute
- both attended but one or both of you did not make a real effort to settle the dispute
- your case is not appropriate for FDR
- the FDR practitioner decided it was inappropriate to continue after starting the process
In certain circumstances the court may exempt you from filing a certificate including where:
- you are applying for consent orders
- you are responding to an application
- your matter is urgent
- there is, or has been, a risk of family violence or child abuse
- one or both of you can’t participate effectively (perhaps due to incapacity or where you live), or
- one of you has breached a court order made in the last 12 months.
You will need to provide proof that one of the exceptions apply to you. For child abuse or family violence, you will also need to get advice about other services that can help, such as from a family counsellor or FDR practitioner, or by ringing the Family Relationship Advice Line on 1800 050 321.
If you reach agreement on arrangements for your children, you can put together a parenting plan. It must be dated and signed by both parents. It can include procedures to change arrangements and resolve any disagreements in future and can be renegotiated at any time. You and your former partner can agree to change a current court parenting order by entering into a parenting plan (unless the court has ordered that you can’t).
There are special rules if you want to include child support in your parenting plan. They are not legally enforceable. If you want to be able to enforce your agreement, you can apply to the court to have it made into a consent order.
You can prepare consent orders yourself or ask your lawyer to do it. The application is filed with the court for approval. It can cover the parenting arrangements for the children as well as financial arrangements. Consent orders have the same legal force as if they had been made by the court after a hearing. You should seek legal advice before signing consent orders.