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Is family dispute resolution compulsory?

 In FDRP, Mediation

I have received a lot of emails recently asking “is family dispute resolution compulsory?” so I thought the easiest way to answer this is through a blog post.

First of all, family dispute resolution is another term for mediation.  In Australia, family law disputes are determined with reference to the Family Law Act and Family Law Rules.

Whilst the Act and Rules do not require parties to participate in family dispute resolution for property matters, the Family Law Rules do require that parties are required to make a genuine attempt to resolve the dispute before commencing any proceedings.  

That being said, family dispute resolution is compulsory prior to starting proceedings relating to parenting matters.  Indeed,  you must provide the court with what is known as a section 60I certificate.  This certificate can only be issued by a registered family dispute resolution practitioner.  

There are some exceptions to this and they are:

    (a)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

    (b)  there is a risk of family violence by one of the parties to the proceedings.

That being said, the mere existence of a domestic violence order (also known as an apprehended violence order) does not automatically mean that family dispute resolution is inappropriate.  Depending on your history and individual circumstances there may be ways in which family dispute resolution can be conducted which continues to provide for the safety of everyone as well as ensuring a balanced mediation process.

So, as is usually the case when it comes to questions of law – the answer is both yes and no.

Ultimately the aim of the legislation is to provide you with as much encouragement as possible to resolve your disputes outside of the Court system.  There is a good reason for this which I will address in another post.

If you would like to find out if family dispute resolution or mediation is right for you and your family you can schedule a call with me here.

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