Can We Avoid Fighting About Our Kids? Dispute Resolution and the Family Law System

by Felicity Reeman on October 10, 2016

Felicity Reeman

As a family law solicitor who is currently studying to become a qualified family dispute resolution practitioner, much of my attentions are presently focused on the role that mediation has to play in family law disputes.

A family dispute resolution practitioner (FDRP) is an independent person who helps people who are affected by separation or divorce to resolve their parenting disputes[1] by facilitating mediation between them.

In order for a party to commence parenting proceedings in the Family Courts, Section 60I of the Family Law Act 1975 (Cth) provides that all persons who have a dispute relating to children make a genuine effort to resolve that dispute by family dispute resolution before a parenting Order is applied for in the Court.[2] There are some exceptions to this, such as when the Court is satisfied that there has been abuse of the child by one the parents, or a child is at risk of being abused, or where family violence is an issue. Certainly, the intervention of the Courts would be is necessitated in those circumstances and mediation would not be appropriate. In the majority of cases, however, parents are compelled to engage in the mediation process in an attempt to resolves the parenting issues in dispute between them before they look to the Courts for assistance.

Mediation can be a powerful tool in resolving issues in dispute between parties, thus enabling them to avoid the emotional and financial burdens associated with litigation. There are many cases that have the potential to greatly benefit from the parties’ participation in mediation. Given the stressful and costly nature of litigation, where possible, mediation should be utilised as a tool to resolve family law disputes. However, mediation is not always appropriate or successful. The reality is that there are matters which need to be litigated in Court.

Even if mediation is appropriate, participation in family dispute resolution may not always be successful in terms of resolving the parenting issues in dispute between parents. Whilst parents often share common goals in wanting that which is in their children’s best interests, they frequently hold different views about how this can be achieved. Parents who hold polar opposite views about matters relating to their children may therefore not be able to reach resolution through mediation. Similarly parents who harbour significant animosity towards one another, may not be able to reach agreement through mediation.

[1] Attorney-General’s Department, Becoming a Family Dispute Resolution Practitioner (2016) Australian Governmenthttps://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/Becomingafamilydisputeresolutionpractitioner.aspx>.

[2] Family Law Act 1975 (Cth) s 60I(1).

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