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02 July 2019

My ex has invited me to mediation – do I need to do mediation before I go to Court?

If you and your former partner cannot agree on parenting arrangements for your children, you will need to go to a special type of mediation called Family Dispute Resolution (FDR) before either of you can apply to the Federal Circuit and Family Court..

Disputes over parenting arrangements

If you and your former partner cannot agree on parenting arrangements for your children, you will need to go to a special type of mediation called Family Dispute Resolution (FDR) before either of you can apply to the Federal Circuit and Family Court.

FDR is convened by an independent registered FDR practitioner. During FDR, the practitioner will discuss any issues you are having working through your parenting arrangements and encourage you to consider options for the future which focus on your children.

The role of the FDR practitioner is to facilitate constructive discussions with you and your ex and work together to help you reach an agreement that works best for your children.

The FDR process generally goes for between four to six hours. Lawyers do not need to attend FDR, but you may take a lawyer if you wish to. You should discuss with the FDR practitioner if you intend to bring someone with you.

The Family Law Act 1975 requires you to obtain a certificate from the FDR practitioner before you can apply to the Court for parenting Orders. At the end of the FDR, both you and your former partner will receive a copy of that certificate. If you don’t agree to attend the FDR, or if your former partner doesn’t attend, the FDR practitioner can still issue the certificate, but it will contain a statement noting that one of you didn’t attend and the FDR did not proceed.

If your matter is urgent (for example your ex has taken the children and relocated without your consent or you have immediate concerns for the safety of the children), then you can seek an exemption from attending FDR. The exemption is considered by a Registrar of the Court when documents are filed. Not all requests are granted.

You may also be granted an exemption if the Court is satisfied there has been child abuse or family violence, or that there is a risk of child abuse or family violence if there is a delay in initiating Court proceedings.

Property disputes

The requirements regarding property division disputes are slightly different.

If you and your ex cannot agree on your property division, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 require that you genuinely try to resolve your dispute before going to Court.

This means you must invite your ex to participate in a form of dispute resolution before going to Court unless there are good reasons not to, such as urgency, family violence, fraud or a time limitation period expiring.

FDR includes mediation and settlement conferences (including a conciliation conference).

Unlike parenting matters, you will not be issued with a certificate after a mediation with your ex regarding property settlement.

Avoiding litigation

In both parenting and property matters, the purpose of engaging in FDR or mediation is to resolve your matter without the stress, cost and delay of litigating in the Federal Circuit and Family Court and so that you ultimately have control over the outcome.

For more information to help you navigate parenting and property matters arising from your separation, please contact our family law team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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