Resolution Pathways | Separation & Divorce Conflict Resolution Is Possible

Family Dispute Resolution (FDR) is compulsory by law. It is an avenue designed to support people who are in conflict, to resolve their family law-related disputes relating to children. It is compulsory to complete FDR, such as mediation, before any family law matters can be heard in Court. Although this process is compulsory, some exceptions are made for cases involving domestic violence, child abuse or anything else that is classed as an urgent matter or unsuitable for FDR. Mediation is not mandatory for disputes involving property only however, we highly recommend FDR to reduce costs and to reach an amicable agreement.

Mediation is a form of Family Dispute Resolution. It is the process where you and your former spouse or partner meet, with the help of a neutral party (known as a mediator), with the intention of coming to an agreement during that mediation. The aim of mediation is to facilitate and establish effective communication between you both, which is especially important if you have children.

Disputes that are commonly resolved through mediation include child custody disputes, child support disputes and financial and property settlements. Mediation is a stop-gap designed to help keep any decision-making about your assets and the time you have with your children, between you both, without the need for someone else (a Judge) to make the decision for you.

Mediation creates an environment in which you can both express your views on the issues and desired outcomes, with a mediator to manage and assist to keep the mediation on track. You can attend mediation alone or seek advice beforehand to be aware of what is in your best interests (and the best interests of your children) and about what you should agree to, or not agree to. Alternatively, you can opt for a lawyer-assisted mediation, which is where you can have your lawyer on hand to seek advice from, throughout the meditation. 

When at mediation, you both must make a genuine attempt to resolve the issues. 

You can avoid going to Court by reaching an agreement through mediation. However, there are necessary steps to be taken afterwards and depend on whether were able to reach agreement during the mediation.

If you both agree on a resolution, you can make it legally binding by applying to the Family Court for Consent Orders. Alternatively, you may wish to make an informal Parenting Plan or enter into a Binding Financial Agreement. If you do not reach an agreement, then an application can be made to the Court and either person can begin Court proceedings. This can be done through filing an Initiating Application to ask the Court to make Orders.

Upon the conclusion of a mediation, the mediator will issue a certificate, known as a Section 60i Certificate. A parenting application cannot be filed with the Court without this certificate.

This certificate will detail the outcome of the mediation, indicating whether: 

• The person did not attend Family Dispute Resolution, but that the person’s failure to do so was due to the refusal or failure of the other party to attend;
• The person did not attend Family Dispute Resolution because the practitioner did not think it would be appropriate to conduct a mediation;
• Both parties attended Family Dispute Resolution, but one or both of them did not make a genuine effort to resolve the issues;
• Both people started Family Dispute Resolution, but during the process the practitioner decided it was not appropriate to continue; or
• Both parties attended Family Dispute Resolution and made a genuine effort to resolve the issues in dispute.

If the mediation fails or does not proceed for the above reasons, the next step is to apply to the Court for Orders.