FAMILY DISPUTE RESOLUTION

Separation and divorce are one of the most stressful life events a family can go through. Making parenting agreements as soon as possible after separation allows everyone to focus on building a better future. Attorney General accredited mediators, called Family Dispute Resolution Practitioners (FDRPs) run the FDR sessions.

Parents are the experts on their children. The FDR process allows people to generate creative needs- and interest-based options that the Courts can't. FDR is private, cheaper and quicker than the Court process. In May 2018 the family court had 21,000 cases waiting to be heard with a waiting time of about 15 months.

All parents should seek independent legal advice and read the compulsory information (here) before mediation.

Best interests of the child

Family Dispute Resolution (FDR) works in the spirit of the Family Law Act, which requires all parenting decisions to be made in the best interests of the child and that children have meaningful relationships with both parents. Children whose parents make agreements are more likely to have strong connections with both parents.

"Best interests of the child" means that the child:

  • Is protected from physical or psychological harm
  • Is protected from experiencing or seeing abuse, neglect or family violence
  • Has a meaningful relationship with both parents
  • Spends equal time with their parents only if it is practical and in the best interests of the child
  • Otherwise, the child should spend substantial, significant time with each parent. This includes ordinary weekdays and weekends, and days that are special to the child or the parent

The Family Law Act assumes that it is in the best interests of the child if parents take equal responsibility for decisions affecting their children's welfare and development. This does not automatically mean equal time.

Privacy

Mediation is a private process that protects parents' reputations, personal details, and private information. Everything said in FDR is confidential and inadmissible. Nothing that is said in the session can be used in Court.

The only exceptions to confidentiality are when:

  • A child is being abused or is at risk of abuse (DOCS notified)
  • A crime against a person or property has been or may be committed (NSW police notified)

Compulsory mediation

A small minority of parents cannot agree on parenting plans and decide that Court is the best option for them. Under the Family Law Act it is compulsory for parents to attend Family Dispute Resolution (FDR) to try and make a parenting agreement.

If they can't agree on a parenting plan at mediation, I give both parents a Section 60i certificate (proving that they have tried mediation) to give to their solicitors to file with their application.

Mediation is not compulsory for urgent cases or cases involving family violence, child abuse or inability to participate (e.g. illness, living in a remote location). Solicitors may decide to send those cases straight to Court.

The family mediation process

The Family Dispute Resolution (FDR) process is structured to help parents make logical, informed decisions about parenting matters. Everyone has an obligation to disclose all relevant information at mediation.

Get independent legal advice before mediation, even if you don't intend going to Court.

The mediation process has two parts

1. Separate intake sessions are held with each parent. They take about 20 minutes over the phone and cover four main things:

  • The family situation and the needs of the children
  • Compulsory information required by the Family Law Act
  • Any patterns of behaviour in the family that indicate that the case is unsuitable for mediation
  • Explain how the FDR mediation session will be run

2. The mediation session:

  • Opening statements - FDRP then each party
  • Agenda setting
  • Issues exploration
  • Parties' private sessions with FDRP
  • Option generation
  • Decision making
  • Write and sign the parenting plan or issue 60i certificate

The bulk of the session is spent analysing issues and generating options.

Sessions run for a maximum of three hours

Parenting orders

Parents may choose to have the Parenting Plan converted to a legally binding Consent Order by the Court.

  • A Parenting Plan is a written agreement detailing how parents will share responsibility for parenting matters
  • A Parenting Plan may be filed with the Court to become a legally binding Consent Order

Parents should seek independent legal advice to make sure that they understand Parenting Plans, Parenting Orders and how agreements and orders can be reviewed as children's needs change.

Effects of family conflict on children

Conflict damages children. Being older does not immunize a child against the damage caused by family conflict.

Children are vulnerable after separation. High conflict, regular conflict and domestic violence threaten their sense of security even more.

Eighty percent of children from separated families have the same adjustment outcomes as children from non-separated families.

Poor adjustment outcomes for the other 20% are nearly always the result of being exposed to prolonged family conflict. Those children find it harder to reach developmental milestones and to have healthy relationships in adulthood.

There are behaviours that parents can commit to that will protect their children during the separation process. Even if only one parent commits to these behaviours, the protective effect is significant.

  • Don't involve children in dispute
  • Always treat their other parent respectfully
  • Build a parenting relationship that is civil and businesslike
  • Make sure that children have strong relationships with their siblings, peers and competent adults outside the family.