Is dispute resolution mandatory?

Before any application for divorce can be filed, legislation and court rules contained in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 prescribe four key practices and procedures. These are as follows:

 1. Family relationship centres

You may wish to attend a family relationship centre (FRC). FRCs assist separating families to achieve parenting arrangements, without going to court. Services are confidential and are staffed by independent, qualified professionals. As FRC’s are government funded, many of the services are offered on a sliding scale or are free of charge, depending on your income. We note that there are waiting periods for relationship counselling.

2. Mandatory pre-action procedures

Certain pre-action procedures are required of parties intending to commence proceedings under The Family Law Act and Family Law Regulations 2021 for an order about property or parenting or both. These procedures aim to help people resolve disputes quickly and avoid having to file an application. These procedures will enable you to limit your costs and avoid the stress of going to court. See FLR 2021 r 4.01 and Sch 1 Pt 1 (Financial proceedings) and Pt 2 (Parenting proceedings). 

3. Applications to the court in family matters

The common applications which can be made to the FCFCA.

1. An application for divorce or validity of marriage proceedings. All divorce applications are currently heard by the FCFCA.
2. An application for other relief or orders including parenting orders or financial orders in relation to property or spouse maintenance.
   
   

If you choose to commence proceedings by making an application for final orders, you must file a Genuine Steps Certificate. This Certificate is required as evidence of each parties’ compliance with the pre-action procedures. The court will review the parties’ Genuine Steps Certificate and assess compliance with the pre-action procedures on the first court date.

4. Mandatory Family Dispute Resolution

Parties who apply to the court for a parenting order, or for a change to an existing parenting order, must obtain a certificate confirming they attempted FDR. The certificates are issued by a registered family dispute resolution providers (FDRPs).

If FDR is unsuccessful in resolving all the issues, then the FDR certificate filed with the Initiating Application will state one of the following:

• the other party did not attend FDR
• the applicant and the other party attended FDR and made a genuine effort to resolve the dispute
• the applicant and the other party attended FDR but one did not make a genuine effort to resolve the dispute, or
• the FDRP decided that the case was not appropriate for FDR.
  
  

At the conclusion of these processes, either party can make an application for court.