Court Proceedings for Parenting Orders and the Need for Family Dispute Resolution

When a couple with children separates, they need to put in place an arrangement for their children’s ongoing care.

Arrangements can be by a separation agreement or pursuant to a court order.

Most people do agree. Generally they do so without the help of a third party. Sometimes the couple goes to mediation and reaches an agreement.

If an agreement cannot be reached, the matter will presumably end up in court. In most cases, however, you need to try to resolve the matter by attending Family Dispute Resolution before applying to court for an order.

Section 60I(7) of the Family Law Act 1975 says:

“Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order”.

In simple terms, this means that, subject to some exceptions, you cannot start court proceedings for a parenting order unless you have a certificate provided by a Family Dispute Resolution Practitioner. The certificate is commonly referred to as a “section 60I certificate”.

1. That the person did not attend Family Dispute Resolution because the other party did not attend.
2. That the person did not attend Family Dispute Resolution because, given the facts of the case, the Family Dispute Resolution Practitioner considered that it would not be appropriate to conduct the proposed Family Dispute Resolution.
3. That both parties attended Family Dispute Resolution and made a genuine effort to resolve the issues, but could not come to agreement.

Section 60I(9) lists exceptions to the requirement that you file a certificate when filing an application for parenting orders. Those exceptions include:

1. There has been abuse of the child by one of the parties.
2. There would be a risk of abuse of the child if there were to be a delay in applying for the order.
3. There has been family violence by one of the parties to the proceedings.
4. There is a risk of family violence by one of the parties to the proceedings.
5. The application is made in circumstances of urgency.

Of course, the court may have a different view as to what is urgent than the person trying to file an application without a section 60I certificate.

Clearly, it is desirable that matters can be resolved without court proceedings. The court is there, however, to make orders when other avenues have failed.

For more information on this topic, please refer to our following pages:

• Children’s Law
• Child Support