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Negotiation is the First Step in Custody Disputes

The period immediately after a separation can be tricky to navigate as each parent tries to navigate the uncharted waters of the relationship breakdown, new living arrangements and sharing the care of children. Negotiation is the first step in child custody disputes and reaching an agreement amicably is ideal; however, this is not always possible. In this situation, a facilitated discussion with a mediator or family dispute resolution practitioner may assist. There are many government-funded and subsidised services as well as private services that can assist parents in these circumstances.

Why negotiation is the first step in custody disputes

The primary purpose of a mediation to discuss parenting arrangements is to reach an agreement as to the care of children post-separation. If facilitated by a Family Dispute Resolution Practitioner (FDRP) and agreement is not reached, a section 60I certificate will be issued. This certificate permits a parent to commence court proceedings in relation to parenting matters. This is because mediation is compulsory prior to litigating family law matters, except in exceptional circumstances where an exemption is granted. 

Negotiations for parenting arrangements can occur in many stages. For example, there may be an agreement to trial a certain arrangement for a specific period of time, with an agreement that parties will re-attend to further discuss the outcome of that trial and future arrangements. This step-by-step approach can support parents to agree to explore possible parenting arrangements and allow children the opportunity to trial arrangements, without them being ‘set in stone’. This will also provide for parents to have an open dialogue of how particular arrangements are working and promote good communication between parents. 

Negotiation is the first step – but what if it fails?

If parties do not succeed in resolving their dispute through mediation, an application can be made to the court for parenting orders. If mediation has been attempted, there are different types of certificates that can be issued to reflect what happened. These include where:

  1. A person did not attend family dispute resolution with the practitioner and the other party but the person’s failure was due to the refusal, or the failure of the other party of the proceedings to attend;
  2. The person did not attend family dispute resolution because the practitioner considers that it would not be appropriate to conduct the proposed family dispute resolution;
  3. The person attended family dispute resolution and all attendees made a genuine effort to resolve the issue or issues’
  4. The person attended family dispute resolution but that the person or the other party did not make a genuine effort to resolve the issue or issues;
  5. The person began attending family dispute resolution but the practitioner considers that it would not be appropriate to continue the family dispute resolution. 

Exemption from family law mediation

Sometimes it is not possible to reach an agreement, or it may not be appropriate for family dispute resolution to occur. If so, an exemption from filing a certificate can be sought, and the exemption will be considered by the court when filing the application. To obtain an exemption, a parent would need to fall into an exemption under the legislation, s60I(9) of the Family Law Act.

Exemptions for a certificate may be granted where:

  1. An application is being made by consent; or
  2. The court is satisfied that there are reasonable grounds to believe that there has been child abuse or family violence;
  3. All of these conditions are met:
    1. The application is in relation to a particular issue;
    2. A part VII (Children) order was made in relation to that issue within 12 months before this application is made;
    3. The application is made in relation to a contravention of the order by a person;
    4. The court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
  4. The application is made in circumstances of urgency; or
  5. One of more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of incapacity of some kind, physical remoteness from dispute resolution services or for some other reason; or
  6. Other circumstances specified in the regulations are satisfied.

If an exemption for filing a section 60I certificate is sought, a party will need to complete the court form, Affidavit-non-filing of Family Dispute Resolution Certificate and set out the basis for seeking the exemption. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Natasha Heathcote - Practice Director – Sydney

This article was written by Natasha Heathcote - Practice Director – Sydney

Natasha Heathcote completed her Bachelor of Business (majoring in finance), and Bachelor of Laws at the University of Technology Sydney. She has long held a strong passion for family law and believes that the law can be used to achieve positive resolutions for her clients. Showing compassion for her clients, she builds strong rapport and trust to help understand their...

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