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. 

It is ideal for parents to do everything in their power to resolve parenting disputes, absence the need for Court intervention. Therefore, negotiation is always the first step in child parenting proceedings and is a requirement under the prescribed Pre-action Procedures of the Federal Circuit and Family Court, prior to making an initiating application to the Court for parenting orders.

What are the Pre-action Procedures?

Before starting parenting proceedings in the Federal Circuit and Family Court of Australia, parties are generally required to follow the Court’s pre-action procedures. These procedures are designed to encourage parents to resolve disputes without litigation by exchanging relevant information, attempting negotiation, and making a genuine effort to participate in family dispute resolution (mediation). The parties must also consider the best interests of the child, avoid unnecessary conflict, and comply with their duty of full and frank disclosure. If agreement cannot be reached, a party may then commence Court proceedings, usually after obtaining a family dispute resolution certificate under section 60I of the Family Law Act 1975 (Cth), unless an exception applies such as urgency, family violence, or allegations of child abuse.

A mediation is an informal process whereby parents attend upon a qualified mediator who is usually a senior barrister or former Federal Circuit and Family Court Registrar with the primary purpose of reaching agreement as to the care of children post-separation. If the parties are unable to reach an agreement at a mediation then a section 60I certificate will be issued. This certificate permits a parent to commence court proceedings in relation to parenting matters. 

If a party can demonstrate exceptional circumstances, an exemption for this requirement may be granted. 

What if mediation 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.