November 26, 2020

Can I go to Court to seek Parenting Orders without doing Mediation first?

By Caroline Khoury, Special Counsel

Negotiating arrangements for your children after the breakdown of your relationship can be a stressful and emotionally taxing experience.

After weeks and months of back and forth discussions with the other parent, you might assume that you can just make an application to the Family Court or Federal Circuit Court to try and break the deadlock. But that is not necessarily the case.

Before filing a court application about parenting matters, the Court requires parties to engage in family dispute resolution.

Family dispute resolution (FDR), also known as mediation, is a process whereby an independent professional assists parties to negotiate and try and reach decisions about parenting arrangements for their children.

The requirement for FDR is set out in Section 60I of the Family Law Act 1975. The object of Section 60I is to ensure all parties make a genuine effort to resolve their dispute before court proceedings are issued. Section 60I provides that the Court must not hear applications about parenting without proof that FDR was attempted first. The proof is in the form of a certificate completed by the FDR provider, known as a Section 60I Certificate. Only accredited FDR providers can issue section 60I Certificates.

There are some exceptions to the requirement to participate in FDR and provide a Section 60I certificate. Those exceptions apply where:

  1. There has been abuse to a child or there is a risk of abuse to a child if proceedings are delayed.
  2. There has been family violence by one of the parties to the proceedings or there is a risk of family violence.
  3. The application relates to contravention of Court orders made within the last 12 months.
  4. The matter is urgent (for example, there is a risk that a child will be removed from Australia without the consent of the other parent).
  5. One or both parties are unable to participate effectively in FDR (for example, for medical reasons or physical remoteness of one of the parties).

If an application is filed without a Section 60I Certificate, the Court will not accept the application unless it is satisfied that one of the exceptions genuinely applies.

If you wish to start FRD, you can do this by contacting your closest Family Relationship Centre (FRC). FRCs are government funded organisations. They charge reduced fees for mediation.  Unfortunately, there can be lengthy delays in commencing mediation through FRCs, due to the high demand for their services.

If you are seeking to fast track the FDR process, there are many private accredited mediators who can conduct mediations within a few weeks of the process being initiated. Private mediations can also take place with the parties’ lawyers being present. This is often a practical and economic way of ensuring that an agreement is reached early on in your matter. FRCs do not allow parties’ lawyers to be involved in their mediation process.

If you need assistance to determine whether you can make an application to the Family Court or the Federal Circuit Court without participating in mediation first, or if you need assistance to arrange private mediation, please contact our office on 8672 5222 to speak to one of our family lawyers.

Have a problem? We can help.