Family Dispute Resolution – Update 19 Nov 2013
The Family Dispute Resolution Act (the Act) was passed on 24 September 2013.
Under it the Government has introduced a mandatory “user-pays” pre-court alternative dispute resolution – Family Dispute Resolution (FDR) – in parenting or guardianship matters. The Government has also made it discretionary for judges to refer parties to FDR after proceedings have commenced (once only).
Who does what in FDR?
Pre-court: Mandatory attendance:
The parties to a parenting or guardianship dispute must attend an FDR prior to filing any court applications. They are barred from making applications to court except in limited circumstances.
The parties will attend the mediation with or without lawyers, depending on their means, whether they are State-subsidised. It is understood that the state does not provide funding for attendance of lawyers.
After commencement of proceedings: ‘Once-only’ FDR:
Parties can be directed to attend at FDR after proceedings have been commenced, if a judge thinks there is a ‘reasonable’ prospect of reaching an agreement. Parties’ consent is only needed if they have attended an FDR in the last 12 months. The parties will attend the mediation with or without lawyers, depending on their means.
There will be no State-funded lawyer, or other representative, to represent the views of the child at FDR.
The FDR Provider
The FDR provider is a mediator, who is required to be specifically trained and accredited to an approved dispute resolution organisation.
The FDR provider is obligated to determine if it is appropriate to start FDR. If it is, the FDR provider will identify the matters in issue between the parties, facilitate discussions on the guardianship and parenting issues, and assist the parties to reach an agreement
on the resolution of those matters that best serves the welfare and best interests of all children involved in the dispute.
The FDR provider is effectively a “gate-keeper” to court/access to justice due to obligations with the FDR form and who he/she provides it to and how.
It is troubling to require the mediator to provide an opinion going forward where the parties are not legally represented in FDR itself (and may not have had the benefit of legal advice), and the FDR provider may not be legally trained or have any Family Court legal expertise/experience. It makes the quality of that opinion concerning.
The FDR practitioner can refer parties to three hours preparatory counselling for FDR, to parenting through separation, and for legal advice to State-paid legal counsel where appropriate. The form cannot be given outside these circumstances outlined.
The form remains a potential barrier to access for justice for parents and guardians.
The fee for FDR was originally stated as being $897.00 GST inclusive. Currently the cost is unknown but will be confirmed in regulations when they are made.
FDR is ‘user-pays’, and both parents are jointly responsible for payment. Payment is a private fee paying arrangement if the parent does not qualify for a State subsidy.
The State will not pay for a lawyer to attend the FDR mediation with a parent/guardian even if they qualify for a State subsidy. The State will only provide four hours of “legal support prior to court”.
When does FDR ‘go live?’
March 2014 is picked as the likely implementation date for the majority of reforms. Family dispute resolution forms and the key FDR provider role/obligations linked to these, may come into force later (October 2014). These are the key ‘gate-keeping’ forms that determine access to court (for those otherwise barred except by compliance with mandatory FDR).
However, given the bulk of the Family Court reforms appear to be scheduled for introduction in March 2014, mandatory pre-court FDR would seem likely to be introduced at the same time as a package.
Conclusions and Concerns
Changes as a result of the government’s Family Court Review will be in place early in 2014.
Unless the matter is very urgent, parties will be required to seek dispute resolution before making any application to the Family Court. That process is expensive and it is unclear what will happen if one party refuses to pay their share or to engage in the
process. All those working in the Family Court system are very concerned how families will be affected. Every family situation is different.
Parties can no longer choose to be legally represented in all Family Court proceedings, so vulnerable parties may be without support when they need it most.
The Law society also has concerns about the ability of court staff to provide services to the vast influx of self-represented people without any knowledge of the legal system the legislation will create.
Family life has become increasingly complicated in the past 20 years. We move about more and separation and re-partnering is a commonplace occurrence leading to many blended families.
We strongly recommend time spent talking to a family lawyer about the particular concerns. Obtaining reliable information and understanding the legal situation can often save time, money and much heartache later.
This will be particularly so once the changes to the Family Court come into force in 2014.
Should you need any assistance with this, or with any other Family matters, please contact Lois Flanagan at Parry Field Lawyers (348-8480).