There are various changes proposed to be made to the FDRP Regulations which will become law on 1 April 2025.
The effect of the changes will be to modernise the regulations and to reduce uncertainty for more effective administration and oversight. The amendments provide clarity to ensure FDRP practitioners keep pace with developments in broader family law policy.
The big ticket changes are summarised below:
Accreditation critieria, Qualifications & Competencies
The new accreditation critiera to become an FDRP will be as follows:
- Graduate diploma of FDR;
- core units of competency and appropriate qualification (being a higher education degree such as a psychology or law degree);
- Core units of competency and NMAS/AMDRAS for at least 2 years.
Professional indemnity insurance
Now there will be a requirement that before you can be accredited, you must hold or be covered by an employer’s professional indemnity insurance to provide FDR services.
Fit and proper person
The current FDRP regulations require FDRP’s to be suitable to perform the functions and duties of an FDR practitioner. The remake of the FDRP regulations includes an eligibility requirement that you are a fit and proper person for acreditation and for these standards to be maintained in order to retain accreditation.
This is a standard objective test which will include consideration of the following factors:
- any previous disciplinary action in a person’s capacity as an FDR practitioner;
- any history of complaints that had been substantiated in a person’s capacity as an FDR practitioner;
- any disqualifications in relation to a professional practice other than FDR; and
- any other matter the Secretary considers relevant.
Complaints mechanisms
The new FDRP regulations will require all complaints to be managed through professional associations that are approved as complaints bodies for FDR services to strengthen consistency with how complaints are handled.
This means that FDR practitioners who only work for government funded FDR services will need to become a member of a professional organisation to access an approved complaints management process. The employer and employee will need to liaise to determine who bears the cost.
There will be a more formal process that takes place, through the professional association, if a complaint is not resolved internally within the organisation who has provided the FDR services.
If a complaint is substantiated by an approved complaints management body, those bodies will continue to provide their findings to the department for consideration towards any necessary action on a practitioner’s accreditation.
Assessment of suitability to undertake FDR
Admissibility in court
The current FDRP regulations specify that before FDR can be provided, the FDRP must be satisfied that an assessment of suitability for the parties in dispute to attend FDR has been made, and that FDR is appropriate.
As this assessment is made prior to FDR, this process is not considered to be covered by the provisions of the Family Law Act for confidentiality and inadmissiblity: Rastall and Ball [2010] FMCA Fam 1290. The Ruling in Rastall efectively reinforced a view that evidence of the assessment is not confidential under s.10H of the FLA, nor inadmissible under s.10J of the FLA. While the judgment was an unreported decision of a single Federal Magistrate, and therefore not binding on other judicial officers, it still provides an interpretation of the Family Law Act and its application to FDR.
For the assessment of suitability to be comprehensive, appropriate and effective, a free exchange of information is important. Hence, the constraint provided by the regulations hinders this process.
To address this concern that relevant information may not be shared during the assessment phase, the new FDRP Regulations will include the assessment for suitability within the concept of FDR itself.
This will make any information shared with the FDR practitioner during the assessment phase confidential and not admissible in court.
This approach will encourage parties to be more open and vulnerable which assists the FDRP in determining their safety and the safety of their children. It will also help practitioners to make more appropriate safety plans and assist in determining if FDR is appropriate for each party’s circumstances.
Under this proposal, an assessment of suitability for FDR not undertaken by an FDR practitioner will continue to operate as it does now in that the person providing that information will not be afforded the protections of the provisions in the Family Law Act.
Any other matter
In determining if FDR is appropriate, the FDR practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by:
- a history of family violence among the parties;
- the likely safety of the parties;
- the equality of bargaining power;
- the risk that a child may suffer abuse; and
- the emotional, psychological and physical health of the parties.
There is also a broad provision that provides an option for “any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution” to be considered in order to determine if FDR would, or would not, be appropriate.
For the purposes of issuing a section 60I certificate that indicates that it would not be appropriate for the parties in dispute to undertake FDR, the Family Law Act states that the practitioner may issue a certificate on the basis that:
…the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution…
This broad discretion provided by the current ‘any other matter’ clause has caused much confusion and uncertainty for FDR practitioners as they are required to subjectively interpret what ‘any other matter’ is.
In order to determine if, in the absence of this provision, practitioners would be limited in their ability to issue 60I certificates, the Department is currently seeking examples of where the ‘any other matter’ clause has been used i.e. where the issues being considered would not otherwise fall within family violence, safety, equality of bargaining power, risk to the child, or wellbeing concerns. The intent behind this feedback process is so that more specific issues can be included in the proposed new FDRP Regulations.
If this feedback process is successful and a variety of other specific examples are included in the Regulations, it is probable the words ‘any other matter’ will be removed from the drafting.
For example, a reason that an FDRP may consider that FDR is not appropriate may be a concern that the proposed FDR constitutes systems abuse, where a client uses FDR to repeatedly coerce the other party into mediation where there has been no change to a family’s circumstances which would warrant the repeat of FDR so quickly after the conclusion of the previous FDR, or the presenting behaviours of a party towards another party who will be involved in the dispute resolution.
Changes to FDRP Regulations
We will update this article on 1 April 2025 when the updated FDRP Regulations become law confirming any changes to the above.
In the meantime, if you have any questions in relation to a family law matter you require advice on or if you would like to book a mediation, contact us.
