Dianne Caruso is a Senior Associate in the Family Law team at HHG Legal Group. She is also a Registered Family Dispute Resolution Practitioner chairing mediations in respect of both parenting and financial matters.
What is Family Dispute Resolution?
Family Dispute Resolution ("FDR") is a process to provide separated parents with a forum within which to engage in discussion about matters arising from their separation. It allows parents to raise concerns and explore ideas in a safe environment with the assistance of a qualified Family Dispute Resolution Practitioner.
What is the role of the Family Dispute Resolution Practitioner?
The Family Dispute Resolution Practitioner ("FDRP") is qualified to resolve disputes between parents arising out of their separation. The FDRP will not make any decisions regarding the issues discussed. Any outcomes must be achieved by agreement between the parties.
The FDRP will manage the process and ensure that it remains a productive and safe environment for both parents. The FDRP may reality check some of the ideas discussed and ensure the focus of the discussion remains on the needs and welfare of the children.
Is FDR confidential?
A FDRP may not disclose a communication made to them during FDR unless an exemption applies such as:
- It is necessary to comply with a law of the Commonwealth, a State or Territory.
- Consent has been provided by the person who made the communication or for a child under 18, by the people with parental responsibility for the child or a Court
- The FDRP reasonably believes it is necessary to:
- Protect a child from the risk of physical or psychological harm;
- Prevent or lessen a serious and imminent threat to the life or health of a person, or to the property of a person;
- Report the commission or prevent the likely commission of an offence involving violence or threat of violence, or an offence involving intentional damage to property; or
- To assist an Independent Children's Lawyer appointed to represent a child's interests.
Is anything said in FDR admissible in Court?
Evidence of anything said in the company of a FDRP conducting FDR, or a person to whom a FDRP refers a person for medical or other professional consultation, is not admissible in any Court or in any proceedings before a person authorised to hear evidence. This does not apply to:
- An admission by an adult that indicates a child under 18 has been abused or is at risk of abuse; or
- A disclosure by a child under 18 that indicates the child has been abused or is at risk of abuse, unless, in the opinion of the Court there is sufficient evidence of the admission or disclosure available from other sources.
If an agreement is reached, will it be enforceable?
If an agreement is reached in relation to parenting matters it can be recorded by way of a Parenting Plan. A Parenting Plan is an agreement in writing between the parents of a child which is signed by the parties and dated. A Parenting Plan may deal with some or all of the following:
- The people with whom a child may live;
- The time a child spends with another person;
- Who has parental responsibility for the child;
- The form of consultations to take place in the exercise of shared parental responsibility;
- The communication a child has with another person;
- Maintenance of a child;
- The process to be used for resolving disputes about terms of the plan or changing the plan to take into account the changing circumstances/needs of the child;
- Any aspect of care, welfare or development of the child, or parental responsibility.
A Parenting Plan can be varied or revoked by agreement in writing between the parties to the plan.
A Parenting Plan is not enforceable. If you wish to make a Parenting Plan enforceable it must be made into Parenting Orders. This can be done by filing a Form 11 Application for Consent Orders in the Family Court.
What if no agreement is reached?
Parents must participate in FDR before making an application to the Court for Parenting Orders unless there are exceptional circumstances. Exceptional circumstances may involve family violence, child abuse or urgency. The applicant needs to file a certificate given to them by a FDRP, along with their application for Parenting Orders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.