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Requirement for Family Dispute Resolution confirmed in Ellwood & Ravenhill [2019] FamCAFC 153

Family Dispute Resolution (‘FDR’) is a type of mediation in which a neutral and accredited Family Dispute Resolution practitioner assists parties to discuss issues around parenting following separation and assist them in developing a parenting plan for future parenting arrangements.

The Family Law Act requires that parties make a genuine effort to resolve disputes through FDR before initiating Court proceedings under Part VII of the Act, which relates to children and parenting. It does this by providing at section 60I that the Court must not hear an application under Part VII for orders in relation to a child unless the applicant files a certificate from an FDR practitioner, known as a “section 60I certificate”, or is exempt from doing so.

A section 60I certificate may state that the person attended FDR; began attending FDR but the practitioner considered it would be inappropriate to continue; or that the person did not attend because the other party refused to participate or the practitioner considered that FDR would not be appropriate.

An applicant will be exempt from the requirement to file a section 60I certificate in a number of circumstances, including where:

  • The application is by consent or in response to an application by another party;
  • There are reasonable grounds to believe there has been abuse of the child or that there is a risk of abuse by one of the parties;
  • There has been or is a risk of family violence;
  • The application is urgent;
  • The application relates to the contravention of a particular order made in the preceding 12 months and the contravening person has shown serious disregard for their obligations under the order; or
  • A party is unable to participate effectively in FDR (e.g. due to incapacity or physical remoteness from FDR services).

Even where the applicant is exempt from filing a section 60I certificate, the Court may still make orders for the parties to attend FDR.

In the recent case of Ellwood & Ravenhill, the Family Court confirmed on appeal the mandatory nature of the requirement to file a section 60I certificate absent a finding that an exemption applies. In that case, the father filed an Initiating Application to vary orders previously made by consent, but did not file a valid section 60I certificate. The mother sought dismissal of the father’s Initiating Application due to non-compliance with section 60I.

The primary Judge did not determine whether an exemption to the section 60I requirement applied, and upon hearing the matter made orders for the parties to attend a child dispute conference, which the mother appealed. On appeal, the Court held that the primary Judge’s hearing of the matter in circumstances where the mandatory requirement for filing a section 60I certificate applied and no finding of exemption had been made constituted a legal error. Consequently, the Court allowed the appeal, set aside the primary Judge’s orders and dismissed the father’s Initiating Application.

Government funded FDR services can be found using the online Find Local Help search or by calling the Family Relationship Advice Line on 1800 050 321. Private FDR practitioners are listed on the Family Dispute Resolution Register.  

If you would like further information about FDR or advice in relation to parenting disputes, we invite you to contact our office on 9670 4122 to speak to a member of our legal team.

By Nicholes Family Lawyers

 

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