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ABSTRACT
Mandatory family dispute resolution for parenting matters has been in place in Australia for over a decade. The rationale for introducing this requirement was that it would provide a more time, cost and outcome effective option for resolving such matters. The aim of this research has been to explore the implications of compulsory family dispute resolution as practiced in the most prevalent form of facilitative mediation. Analysis of recent research, reviews and court cases highlights the need for further evidence to determine whether intended outcomes are being achieved and to advise on strategies for resolving critical issues inherent in current FDR arrangements.
Disclosure Statement
No potential conflict of interest was reported by the authors.
Court Cases
Alfred & Warbug [2020] FCCA 2524
Bellini & Bellini [2021] FCCA 271
Burnett & Charmers [2019] Fa,CA 568
Carpenter & Carpenter [2018] FCCA 2979
Clawfer & Clawfer [2018] FamCA 429
Dempsey & Arber [2021] FCCA 366
Donaldson & Sorrell [2017] FCCA 2488
Eagleton & Eagleton [2019[FamA 894
Merritt & Hurst [2020] FCCA 3358
Muscat & Muscat [2021] FamCA 209
Parmentier & Yates [2017] CamCA 994
Spearman & Spearman [2019] FCCA 3182
Valack & Valack (No.2) [2020] FCCA 1799 (2 July 2020)
Wagstaff & Wagstaff [2018] FCCA 927
Warner & warner [2016[FCCA 703
Notes
1. Section 60I applies specifically to parenting matters. Although some mediators may include property matters, this is not mandated by the Act.
2. Spearman & Spearman [2019] FCCA 3182 exemplifies the exercise of this power.
3. The requirement for seeking dispute resolution is also included in the Family Law Rules 2004 and applies to both financial and parenting disputes.
4. In addition to these exceptions to the requirement to attempt FDR before making an application for Part VII orders, the presiding judicial officer is empowered to determine whether there is an ‘urgent matter’ or ‘serious disregard’, although these provisions are not defined.
5. Nadja Alexander, “The Mediation Metamodel: Understanding Practice” (2008) 26 Conflict Resolution Quarterly 97, 112.
7. Under the Federal Court of Australia Act 1976 the Court or a Judge may direct that a Registrar may exercise certain powers of the Court. These powers are listed in Schedule 2 of the Federal Court Rules 2011. The Court may review a Registrar’s decision on its own motion or upon a party applying for a review. https://www.fedcourt.gov.au/services/powers
8. FDRP and litigants were from the same agency in Citation2016.
9. Although not mentioned by Taylor, there is a potential for fear to be a barrier to revealing victimisation, including non-physical domestic violence.
10. Attorney General’s Department (2018) Fact Sheet Section 60I certificates for Family Dispute Resolution. https://www.ag.gov.au/families-and-marriage/publications/fact-sheet-section-60i-certificates-family-dispute-resolution.)
11. This is consistent with the Smyth et al study (Citation2017) in which over half of parties thought that the purpose of engaging with dispute resolution was to get a certificate to be able to go to court.
12. See Donaldson & Sorrell cth_FCCA_2017_2488, Eagleton & Eagleton_cth_FamCA_2019_894, Aldred & Warburg_FCCA_2020_2524, Burnet & Chalmers th_FamCA_2019_568, Clawfer & Clawfer_cth_FamCA_2018_429. Wagstaff & Wagstaff cases_cth_FCCA_2018_927, Warner & Warner ases_cth_FCCA_2016_703.
13. See Bellini & Bellini [2021] FCCA 271, Dempsey & Arber [2021] FCCA 366, Muscat & Muscat [2021] FamCA 209, Parmentier & Yates [Citation2017] FamCA 994, Merritt & Hurst [2020] FCCA 3358, Carpenter & Carpenter [2018] FCCA 2979
14. Attorney General’s Department, Australian Government Fact Sheet, General information and practice issues for Family Dispute Resolution Practitioners https://www.ag.gov.au/families-and-marriage/publications/general-information-and-practice-issues-family-dispute-resolution-practitioners
15. For example, each of these services promote ODR as an option Relationships Australia, Jigsaw Mediation, Fresh Start Mediation Services, Family Mediation Brisbane, Family Relationships Online and Immediation.
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