Parents are required to participate in family dispute resolution prior to the commencement of Court proceedings relating to children.
The exceptions to this requirement are:
- If there is reasonable grounds to believe that there has been abuse/risk of abuse of a child or family violence/risk of family violence; or
- That there will be a risk of abuse of the child or family violence if there is a delay in proceedings being commenced.
A parent wishing to commence proceedings in these circumstances must inform the Court of the information that they have received from a family counsellor or family dispute resolution practitioner about the services and options available to them. Otherwise, they will be referred to a family dispute resolution practitioner to receive this information before their matter is dealt with by the Court.
FDR is however subject to it being appropriate in the circumstances and to proper procedures being followed. The threshold issue of suitability is complex and more broadly includes a consideration of maters such as:
- A history of family violence;
- The safety of the parties;
- The equality of bargaining power;
- The risk that a child may suffer abuse; and
- The emotional, psychological and physical health of the parties.
The solution may be to adapt the FDR process in some cases rather than exclude the process altogether. For example, in cases involving violence, parents may be separated or in cases of inequality of bargaining power, a lawyer being present for the parent may assist.
However, these issues in FDR remain particularly problematic. The process is intended to allow both parents to engage freely and reach a consensual agreement yet these factors by their nature mean this may not be possible despite steps taken to address the concern.
If you have any concerns about the suitability of FDR for you, then please contact our office and make an appointment to discuss.