Saturday, December 11, 2010

Disputes Over Children After Separation – Compulsory Mediation (Family Dispute Resolution)

What is family dispute resolution (FDR) in family law?

Family dispute resolution (FDR) is a process involving you and your ex-partner meeting with a family dispute resolution practitioner (FDRP) to try to sort out your family law issues. These issues might include who your children will live with, who they will spend time with and what to do about your shared property. FDR can help separating or separated couples to reach an agreement without having to go to court.

If you and your ex-partner are able to reach an agreement during FDR, you may be able to formalise the agreement by including it in an application to the court for consent orders (parenting orders made by agreement); Or alternatively, by making an agreement out of court (either yourself – or at FDR known as a parenting agreement or parenting plan.

If you are intending to ask the court for parenting orders (orders about your children), or to make changes to current parenting orders, you must attend FDR and obtain an FDR Certificate before the court will let you file your papers.

There are some exceptions, see below:

Does everyone have to go to FDR?

Yes, if you are making an application to the court for parenting orders (including changing existing parenting orders) you must attend FDR and obtain an FDR Certificate before making your application to the court, unless you fall within one of the following exceptions.

You need to get legal advice about whether you fall within one of the exceptions.

The exceptions are:

• You are filing consent orders

• The court can be satisfied that there:

1. Has been or is a risk of child abuse, or
2. Has been or is a risk of family violence

• You are responding to another person's (such as your ex-partner's) application for parenting orders

• Your application is about contravention of a parenting order that was made less than 12 months ago and the behaviour of the other party shows serious disregard for those orders

• Your case is so urgent that you should not need to attend FDR and get an FDR Certificate

• You are unable to participate effectively in FDR, for example, because you live in a remote area or you are incapable of participating in FDR for some other reason, such as where an interpreter is needed and there are none available.

Some people living in remote areas may not have to participate in FDR if there are no services in their area. Sometimes FDR may be available to people in remote areas via a telephone or video link.

Even if you did not have to go to FDR before you started your case in court because your case fell within one of the exceptions, once you start your case, the court may still order you to attend FDR.

NB There is no requirement for you to attend FDR if you only want to resolve property or financial issues. However, FDR can be a useful process to assist couples to resolve these sorts of disputes.

Are the things I say at the FDR Conference kept private?

Generally the things you say to an FDR practitioner in an FDR Conference cannot be told to anyone else, including the court. They must be kept private and confidential.

There are some exceptions to this. They are:

• If the FDR practitioner has to tell the information to someone because of a particular law

• If you agree (give your consent) for the FDR practitioner to tell someone else the information

• If it is necessary to protect a child from the risk of physical or psychological harm

• If it is necessary to protect a person from a threat to their life or health

• If it is necessary to protect a child or other person from violence or threatened violence

• If it is necessary to protect property, including where a crime might be committed which will cause damage to property, or where property has already been criminally damaged

• Where the information is necessary for research into families (this does not include your personal identifying information, which will be kept private)

• In order to prepare an FDR Certificate for the Family Court.

Although an FDR practitioner may need to tell any of these things to another person, none of this information can be used in court, except where an adult or child has said that a child has been abused or is at risk of being abused.

Talking to an FDR practitioner is different from talking to a family consultant in the Family Court. If your case goes to court and you attend a case assessment conference with a family consultant, anything you tell the family consultant will be told to the court.

Where can I go for FDR?

Family Relationship Centres also offer FDR. Family Relationship Centres located in the Perth metropolitan and regional areas. Other agencies and individuals also provide FDR. Please note that a number of private FDR practitioners charge a fee for their service. You should check their rates before you proceed.

Agency / Centre Web Address



Citizens Advice Bureau

Gosnells Community Legal Centre

Legal Aid WA

Relationships Australia

Legal Aid WA offers an FDR program called Alternative Dispute Resolution (ADR). You may be eligible for this program. You can fill out an application for a grant of aid or call the Legal Aid WA Infoline on 1300 650 579 for more information.

There are also private lawyers who conduct FDR. Charges apply and you should check their rates before you proceed.

What do I do after attending FDR?

If you reach an agreement through FDR you can formalise it by including it in an application for consent orders and then filing these parenting orders (made by agreement, so they are called consent orders) with the Family Court. You can also include the agreement in a parenting plan. If you have not been able to reach an agreement through FDR and you intend to make an application to the court for parenting orders, you need to ask your FDR practitioner for an FDR Certificate.

What happens if I do not go to FDR?

If you do not attempt to go to FDR and get an FDR Certificate, then the Court will not accept your application for parenting orders (including one to change current parenting orders) for filing, unless you fall into one of the exceptions.

If one of the exceptions applies to you, then instead of filing an FDR Certificate, you will need to file an Exemption form. Sometimes you need to file other documents too, depending on the exception you fall under. You should seek legal advice if you think there is a reason why you cannot attend FDR.

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