THE ROLES OF: Courts and dispute resolution methods Non-government organisations The Media

This movement has been based on research showing: THE ROLES OF: Dispute resolution methods Since the FLA was introduced, the Family Law system has been encouraging “ALTERNATIVE dispute resolution” (resolving disputes without a judge making the decision). This movement has been based on research showing: The adversarial system is not effective in protecting the best interests of children in family separation disputes; and IF parents are able to resolve their own conflict, the child involved will suffer less distress.

Family Dispute Resolution (FDR) THE ROLES OF: Dispute resolution methods Family Dispute Resolution (FDR) A NON-judicial process (no judge to make a decision) where an independent practitioner helps people affected by a separation or divorce to resolve some of their disputes with each other (s. 10F of the FLA)

REQUIRES Since the 2006 Reforms, (i.e. disputes involving children) THE ROLES OF: Dispute resolution methods Family Dispute Resolution (FDR) Since the 2006 Reforms, s. 60I of the FLA REQUIRES couples who have a dispute about any issue that COULD be dealt with by a court under Part VII (i.e. disputes involving children) to make a genuine effort to resolve their dispute using Family Dispute Resolution BEFORE applying to the Court for a judge to make an ORDER.

Mandatory FDR was introduced as part of the 2006 reforms (s. 60I). THE ROLES OF: Dispute resolution methods Family Dispute Resolution (FDR) Mandatory FDR was introduced as part of the 2006 reforms (s. 60I). It was designed to reduce the number of children’s cases that need court-based interventions. So NOW, if a divorcing/separating parent wants to apply to the Family Court about an issue involving children (e.g. they want a judge to create parental orders, stating who the child will live with, etc), they have ONLY TWO OPTIONS: File an application stating that their case is exempt from the requirement to go to FDR (e.g. there is evidence of serious violence); Go to FDR and get a certificate from the practitioner stating that the dispute resolution failed (or that the situation was not one that could be “fixed” using FDR).

The impact of making FDR mandatory has had some negative impacts. THE ROLES OF: Dispute resolution methods Family Dispute Resolution (FDR) The impact of making FDR mandatory has had some negative impacts. The AIFS Study found that a lot of the parents going to FDR were only going because they HAD to (to “get the certificate” so they could go to court instead). If the people involved in FDR are going into it with this motive, it is not effective.

FAMILY RELATIONSHIP CENTRES THE ROLES OF: Dispute resolution methods Family Dispute Resolution (FDR) The main source of Family Dispute Resolution services are the FAMILY RELATIONSHIP CENTRES that were introduced as part of the 2006 Reforms

WITHOUT going through a messy Family Court case THE ROLES OF: Dispute resolution methods Collaborative Law FDR is only needed IF the parties have not sorted out their case before going to court. A lot of separating/divorcing couples actually do work out their post-separation arrangements without going to court AND without having to go to FDR at a Family Relationship Centre. There is a growing movement in Australia called collaborative law which can help parties work out arrangements WITH lawyers but WITHOUT going through a messy Family Court case

THE ROLES OF: Dispute resolution methods Collaborative Law The Law Report, ABC Radio National (2009) reported some features of this “new” way of working out family cases: The parties agree to solve their dispute through collaborative law Each person has a lawyer The lawyers agree that if they can’t come to an agreement the lawyers CANNOT take the case to court – they have to “walk away” (this removes ALL THREATS to take the issue to the Family Court, which means everyone has to negotiate without making threats!) The focus is then on solving problems, rather than making money by going to court

conventional divorce process. THE ROLES OF: Dispute resolution methods Collaborative Law Even though: each partner also gets a ‘divorce coach’; there is an independent financial consultant (to make sure that both sides have accurately reported their finances); AND a ‘child development specialist’ comes in to give information about what will be best for the child it is still cheaper than the conventional divorce process.

So the agreement is legally binding too. THE ROLES OF: Dispute resolution methods Collaborative Law At the end of the process, the lawyers write up an agreement, the parties sign it and it goes to a judge to get signed off on (a Parenting Plan). So the agreement is legally binding too.

2016 HSC question Use the notes to map out a response to this question: To what extent does the law encourage cooperation to resolve conflict in families?