The Family Dispute Resolution of Parenting Matters in Australia: An Analysis of the Notion of an 'Independent' Practitioner

Abstract

This article considers the contemporary nature of family dispute resolution in parenting matters in Australia. Our particular focus is on exploring a fundamental principle of family dispute resolution; namely, the purported ‘independence’ of family dispute resolution practitioners (FDRPs). Our analysis questions the reality of the notion of an ‘independent’ FDRP, particularly in the context of the current provisions of the Family Law Act 1975 (Cth) (‘Act’). These provisions effectively make attendance at family dispute resolution a compulsory pre-filing requirement in family law parenting disputes, and place a number of active obligations on FDRPs that might be said to conflict with the idea of ‘independence’. For example, the current law obliges FRDPs in some circumstances to actively raise the issue of equal time shared parenting with parties. FRDPs are also required to assess whether parties are making a ‘genuine effort’ in theprocess. We argue that in the modern practice of family dispute resolution,practitioners invariably take an active role – and that this also conflicts with the idea of an ‘independent’ practitioner. FDRPs do this by assisting parties to develop a realistic agenda, by contributing to ideas in the option generation phase, by reality testing impractical proposals and, often, by giving the benefit of their own experience to the parties as either family lawyers or social scientists when discussing the legal and practical merits of proposed agreements.