Obligations of the FDRP at intake

The Family Law Act defines Family Dispute Resolution (FDR) as:

a process, other than a judicial process, in which a Family Dispute Resolution Practitioner (FDRP) helps people affected or likely to be affected by separation or divorce to resolve some of all of their disputes with each other. [1]

It is envisaged in this process that the FDRP is independent of all the parties involved.[2]

So, an independent person (who does not take sides) assists the parties (who may be anyone affected by a separation) to resolve any or all of the issues that might arise as a result of this situation, (which could include parenting, financial issues, communication, or any other aspect of their situation).

How should this take place?

There is little indication of how the FDRP is to conduct FDR. The only guidance given to FDRPs comes from the objects and underlying principles of the Family Law Act[3], the obligations they have as advisors [4], and the requirements under the Regulations[5].

These provide for a child focus approach in parenting matters, prescribing that the approach must be based on the child’s right to have a meaningful relationship with both parents and other significant people in the child’s life, and at all times, to promote the need for the child to be safe, comfortable and secure.

But there are steps that must be undertaken by the FDRP before the FDR can commence.

The provision of information

The Regulations provide for the information that must be provided to the parties prior to commencing the process including:

  • The qualifications of the FDRP;[6]
  • The fees to be charged;[7]
  • The compulsory nature of FDR if parenting issues are involved and the consequences of issuing a certificate under s60I; [8]
  • That the role of the FDRP does not allow for them to give legal advice;[9]
  • That the FDRP has confidentiality and disclosure obligations;[10]
  • That evidence of anything said or any admission made in FDR is not admissible in court.[11]

The Family Law Act provides that certain information must be provided to those considering FDR.

If there is any suggestion that a reconciliation may be a possibility, then information regarding services that may assist with this must be provided, unless the FDRP is satisfied that this material has already been provided.[12]

If the FDR involves issues affecting a child, then the parties must be informed that the best interests of the child are the paramount consideration, and that this generally involves the child in having a meaningful relationship with both parents, and above all being protected from any type of harm. [13]

In parenting matters the FDRP must also provide information about the legislative pathway including: the application of the presumption of equal shared parental responsibility; how this may be rebutted; if it applies the consequences for consideration by the court of equal time, substantial or significant time, of other arrangements that may be in the child’s best interests. The FDRP must also provide information regarding parenting plans, what these can include, how they impact on parenting orders and court proceedings, and where assistance can be obtained to create one.[14]

In addition to the provision of this information the FDRP must determine that FDR is appropriate for these parties at this time.

Assessment for suitability

The Regulations provide that the FDRP must undertake an assessment of the suitability of FDR prior to providing this service. [15] FDR can only proceed if the FDRP is satisfied that it is appropriate and all parties have the ability to negotiate freely. [16]

This stage in the pre-FDR is generally called the Intake. A detailed screening must be undertaken so that the FDRP is satisfied that the parties wish to discuss matters appropriate for FDR and that they both have the capacity to participate.

Various factors are listed for consideration :

  • Any history of family violence; [17]
  • The likely safety of the parties; [18]
  • The equality of bargaining power; [19]
  • Any risk that a child might suffer; [20]
  • The emotional, psychological and physical health of the parties; [21]
  • Any other factor that the FDRP considers relevant. [22]

The Regulations place a great deal of responsibility upon FDRPs prior to commencement of FDR at the stage of the intake or Pre-FDR. This involves each of the participants in a separate session with the FDRP.

Intake session

Generally the intake session covers the following aspects:

  • Provision if information as required by the Regulations and discussed above;
  • Information about the process;
  • Information about the FDRP and their role;
  • Clarification of the limits of confidentiality;
  • Collection of background information, goal for the FDR process, and a general idea of information factors and considerations;
  • Opportunity to ask questions, and discuss likely options for process and procedure.

The intake has to allow sufficient information exchange between the FDRP and the parties for the parties to understand the process, consent to proceed to FDR, and commit to the requirements of the process including confidentiality.

It must also allow the FDRP to gather sufficient information and observations to be able to commence their assessment of the suitability of the process, and the most appropriate way to conduct FDR.

In the family dispute context there must be screening for family violence, mental health issues, substance abuse, cultural factors, or any other matter that may impact on the capacity of the party to fully participate in the process. DOORS and CRAAF are some of the many examples of screening tools currently available for this purpose.

Once the FDRP has determined that FDR is appropriate, and provided the necessary information, they must also ensure that the process is suited to the needs of the parties. [23] This can involve the choice of venue, the layout of the room and the time at which it is conducted. The FDRP will have to consider the best format to meet the individual needs of the parties in each case. This can include consideration of support persons, case workers, legal supports, interpreters, cultural supports, joint or shuttle options, in person or telephone or skype alternatives, safety plans, IVOs or many other different types of protective measures. If the FDRP determines that FDR is no longer suitable at any time during the process, then FDR must be terminated. [24]

Only when all of these steps have been satisfied can the FDRP proceed to conduct FDR!


[1] S10F(a) Family Law Act

[2] s10F(b) Family Law Act

[3] s60B Family Law Act

[4] ss 12G, 60D and 63DA Family Law Act

[5] Regs 25-30 Family Law(Family Dispute Resolution Practitioners) Regulations 2008

[6] Reg 28 (1) (d)

[7] Reg 28 (1)(e)

[8] Reg’s 28 (1)(f), (g) and (h)

[9] Reg 28 (1)(a)

[10] s10H Family Law Act and Reg 28 (1)(B)

[11] s10J of the Family Law Act and Reg 28 (1)©

[12] ss12 G and 12C of the Family Law Act.

[13] S 60 D

[14] s63DA

[15] Reg 25(1)

[16] Reg 25(2)

[17] Reg 25 (2)(a)

[18] Reg 25 (2)(b)

[19] Reg 25 (2)©

[20] Reg 25 (2)(d)

[21] Reg 25 (2)(e)

[22] Reg 25 (2)(f)

[23] Reg 29 (a)

[24] Reg 29 ©

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