The terms mediation and family dispute resolution are used interchangeably in the area of family law. In fact, the Family Dispute Resolution Service offered by the Family Court was formerly known as the Family Mediation Service. This service provides information, counselling, dispute resolution and group programs to parties and families that have been unable to resolve family disputes otherwise. The disputes that are most often resolved by the Service are child custody disputes, child support disputes, property settlements and financial settlements.
The aim of Family Dispute Resolution is to facilitate effective communication between the parties in dispute. By putting an independent third party at the helm of the meeting, the parties are able to better express their perspective on an issue and their desired result.
In Australia, Family Dispute Resolution is compulsory for the resolution of disputes involving children. Both parties must make a genuine effort to resolve the parenting matter before taking it to court. This genuine attempt is demonstrated by attending Family Dispute Resolution. There are some exceptions to this rule including instances involving domestic violence, child abuse or anything else is deemed as an urgent matter.
Who is involved?
The Family Dispute Resolution process is facilitated by a family dispute practitioner. These practitioners comes from all walks of life but all have certain things in common. They are highly skilled professionals with training in resolving disputes involving children, finance or property matters. They can come from a variety of different professional backgrounds ranging from law to social work.
These practitioners do not give legal advice, however they have a very thorough understanding of the principles which apply to couples who are separating and can provide guidance on these. For parenting matters, the main aim of the whole process is to ensure that the dispute is resolved in a way that is in the best interests of the child.
As an independent third party, family dispute practitioners are impartial and not biased toward either party. The practitioner also has a duty of maintaining confidentiality to the greatest extent permitted by the law.
You are permitted to bring your lawyer with you to the family dispute resolution sessions. Your lawyer may be able to assist you in coming to the best outcome for your child.
Advantages of family dispute resolution instead of court
Family Dispute Resolution has significant advantages in comparison with going to court. Firstly, it is significantly cheaper and faster than the court process. Going to court is expensive and involves paying solicitor fees, court fees and filing fees. There are also extremely long waiting periods for court dates in the Family Law Courts. Family Dispute Resolution also promotes positive communication between the disputing parties. The aim is to achieve a results in the best interest of the child and positive communication between parents contributes to this greatly.
Another important advantage is that the decision making is left to the parties and is not imposed by a judge in a court. This leads to less stress and also more flexible parenting arrangements. As the parties have come to a decision themselves, they are less likely to breach the arrangements that have been put in place. Furthermore, if you make a mutual decision during a dispute resolution session, it is easier to change than if a court order is a made by a judge.
If the parties cannot resolve the dispute via Family Dispute Resolution, than they can seek arbitration, negotiation between lawyers or commence court proceedings.
However, if you do wish to commence court proceedings, you must provide a section 60I certificate. There are some exceptions to this rule including the occurrence of child abuse and domestic violence. More information on these certificates can be found below.
Section 60I(1) of the Family Law Act 1975 states that,
The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by Family Dispute Resolution before the Part VII order is applied for.
A Part VII order is parenting order. In other words, you cannot apply for a parenting order through the court system without attending Family Dispute Resolution and being granted a section 60I certificate accordingly.
Essentially, a section 60I certificate allows the parties to file an application in court.
Exception to the need for a section 60I certificate
As mentioned previously, there are exceptions to the rule that parties must attend family dispute resolution before filing with the court. These exceptions include:
- an urgent case;
- risk of family violence;
- risk of child abuse;
- a party involved is unable to attend due to mental or physical incapacity;
- a party is unable to attend due to where they live;
- there have been parenting orders in place for less than 12 months and the other party has contravened them.
In order to attain a section 60I certificate, you must attend Family Dispute Resolution which demonstrates that you have made a genuine effort to resolve the dispute. There legislation stipulates the 5 different types of certificates that a Family Dispute Resolution practitioner. These are as follows:
- a certificate to the effect that the person did not attend Family Dispute Resolution, but that the person's failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;
- a certificate to the effect that the person did not attend Family Dispute Resolution because the practitioner did not consider it would be appropriate to conduct family dispute resolution;
- a certificate to the effect that the people attended family dispute resolution conducted by the practitioner, and all people made a genuine effort to resolve the issue or issues in dispute;
- a certificate to the effect that the people attended family dispute resolution, conducted by the practitioner, but one or more of them did not make a genuine effort to resolve the issue or issues in dispute;
- a certificate to the effect that the people began family dispute resolution, but part way through the practitioner decided it was not appropriate to continue.
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