Compulsory Family Dispute Resolution
It is generally compulsory for parties to a family law dispute to attempt family dispute resolution prior to commencing court proceedings. When parties attend family law dispute resolution, they are provided with a certificate under section 60I of the Family Law Act. The sole purpose of the 60I certificate is to provide evidence to the Family Court or the Federal Circuit Court that the parties attempted to resolve their dispute with the assistance of Family Dispute Resolution (FDR) prior to commencing court proceedings.
In some cases, it is possible to get an exemption from the requirement to attempt family dispute resolution – for example, in matters where there has been family violence.
Types of 60I certificates
There are 5 types of section 60i certificates that a FDR practitioner can issue. They are as follows:-
- The person did not attend FDR due to the refusal of the other person or people to attend;
- The person did not attend FDR because the practitioner did not consider it would be appropriate to conduct FDR;
- The parties attended FDR, conducted by the practitioner, and all people made a genuine effort to resolve the issue or issues in dispute;
- The parties attended FDR, conducted by the practitioner, but one or more of them did not make a genuine effort to resolve the issue or issues in dispute; or
- The parties began FDR, but partway through the practitioner decided it was not appropriate to continue.
What is a genuine effort?
“A genuine effort” is a phrase which is given its ordinary meaning in these circumstances. So it involves a real, honest attempt to resolve a dispute. It must be more than a superficial or token effort or one that is forced or is a pretence. The effort should be one that is realistically directed at resolving the issues. The question about whether a party has made a genuine effort to resolve a particular case will depend on the circumstances of that case. It is a matter for the professional judgment of the FDR practitioner. The failure to resolve a dispute does not necessarily mean that the parties involved have not made a genuine effort. There may be valid personal reasons why some parties refuse to change their views.
There are exceptions for the need to obtain a section 60i certificate before you can commence court proceedings for Parenting Orders. Those exceptions include cases involving family violence, child abuse or urgency.
If family violence issues are identified and the FDR practitioner forms the view that it is not appropriate to conduct FDR, he/she can issue a certificate accordingly. On a certificate, the FDR practitioner is only required to indicate that FDR is inappropriate. Practitioners are not required to provide any reasons as to why it is inappropriate.
An FDR practitioner cannot provide a section 60i certificate if more than 12 months have elapsed since the person last attended, or attempted to attend FDR about the parenting issues to be covered by a Court Application. In the same way, a person can only file a certificate that a practitioner has issued within 12 months of the last FDR or attempted FDR. These time limits are important and recognise that issues and disputes, and/or the attitudes of the people involved, usually change over time and this may warrant another attempt to resolve the dispute.
Communication to FDR practitioners is not admissible in court proceedings, except in cases of child abuse where the court cannot obtain the information through other sources.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.