Closing the chasm between FDR and the Court

Written by Will Story for the Family Advocate, Spring Edition

Since 2013, Family Dispute Resolution (FDR) has been an integral part of the family justice system. However, many who have had a close association with FDR since the beginning know that the vision has never quite been fully realised. 2025 may well turn out to be the year in which that potential is unlocked.

In the last edition of the Family Advocate, we highlighted major changes which took effect on 1 July 2025. As readers may recall, FDR is now fully funded for all parties regardless of their income and available nationwide through Fair Way as the sole supplier of FDR for the Ministry of Justice.

One path for s46F referrals

As at the time of writing, although the changes have only been in place for three months, there is one major advantage which we are seeing play out. The Courts are no longer in the unenviable position of having to select a course of direction for parties that is reliant on the parties doing their own research to elect a supplier. Parties are no longer being sent into the ether after a section 46F referral is made by a Judge. Instead, there is now one pathway to FDR.

Having to research and choose which supplier to engage was an arduous task to expect of families who are stressed by conflict and often overwhelmed by the intricacies of the family justice system. While section 46F of the Care of Children Act 2004 (the Act) has always been a useful tool, it has lacked impetus. The Court has always had the power to direct parties to FDR, but due to the multiple supplier model the Court was not free to direct which supplier parties must go to. As a result, there was often a chasm between the Court’s direction and the FDR process actually happening for parties. Naturally that chasm undermined the Court’s confidence in FDR as a process – through no fault necessarily of the Courts or FDR suppliers themselves.

With a sole nationwide supplier model, if parties wish for a fully funded service there are no longer barriers to the Courts sending s46F referrals directly to the supplier – thereby alleviating the burden from parties to self-refer. This is a major win for parties.

The advantage of this new model for families is that their experience with various family justice system service providers becomes seamless – not stunted as it once could be. Referrals can take place as immediately as they are directed, and importantly, the Court can have every confidence that they are actually happening.

The numbers and benefits

In real terms, we have already seen the chasm closing. An Official Information Act request in 2024 painted a bleak picture of section 46F referrals. Based on the data provided there was an average of five Court referrals per year each year from 2015 to 2022. Against that backdrop it is extremely promising to share that there have been over 50 Court referrals to FDR in the first 12 weeks since 1 July 2025. This is a milestone for FDR and one to be celebrated.

Fair Way is continuing to work with the Ministry of Justice and the Courts to streamline the referral to FDR process. The vision that the Korowai Ture ā-Whānau report writers had in 2018 of a joined-up family justice system is slowly but surely coming to fruition.

While the benefits of a free FDR service are vast, some question whether there may be a lower commitment of parties to the process – given they no longer have to fund it themselves. While this is a legitimate concern, we can all play a key role in emphasising the value for all in trying this process. In addition to the obvious cost and time benefits, mediation creates a valuable opportunity to talk together with the support of an independent mediator who is not there to judge. Any changes to parenting arrangements or new plans created must be by mutual agreement, thereby retaining for parties complete control over their children’s future. It is also a chance for children’s needs to be elevated above adult conflict by engaging in a purely child-centric process.

Referral requests

If you are involved in Court proceedings and you feel your parties could benefit from mediation, seek a section 46F referral from the Court. You might be pleasantly surprised about how successful mediation can be at shifting parties who are completely stuck. While our Court process is there to help the neediest cases, FDR as a forum is far better suited to constructive discussions around the future of tamariki. Even if the parties have qualified for funded FDR within the previous 12 months, upon receipt of the Court’s direction they will receive entitlement to another round of mediation.

50 Court referrals to FDR from 1 July 2025 is an impressive milestone. 2025 is a historical year for FDR. Next time you find yourself at a Directions Conference with your client pondering the next steps, be a part of history and seek a direction from the Court to FDR. If you are not convinced of the benefits of FDR beforehand, you will be afterwards and most importantly, your client will thank you for it.

About the author

Will Story BA LLB (will.story@fairwayresolution.com) is an experienced family lawyer (not practising) and Head of Family Services at Fair Way.