What you must do before going to Court for your parenting dispute

On 1 September 2021, the Federal Circuit Court of Australia and Family Court of Australia merged to become the new ‘Federal Circuit and Family Court of Australia.’

With the commencement of the new Court came the release of a new set of rules.

This article will discuss the new rules regarding pre-action procedures for parenting matters ie. the things you must do before going to Court for your parenting dispute.

Initial Correspondence

If you are considering going to Court for your parenting dispute, you must first do the following things (only if it is safe to do so):

• give a copy of Schedule 1 of the Federal Circuit and Family Court (Family Law) Rules 2021 to the other prospective parties to the proceeding; and
• make inquiries about the family dispute resolution services available; and
• invite the other parties to participate in family dispute resolution with an identified person or organisation or other person or organisation to be agreed.

Family Dispute Resolution

To the extent that it is safe to do so, you and each other prospective party must:

• cooperate for the purpose of agreeing on an appropriate family dispute resolution service; and
• make a genuine effort to resolve the dispute by participating in Family Dispute Resolution.

Family Dispute Resolution means trying to reach an agreement about your family law problems without going to court. Mediation is a type of Family Dispute Resolution.

If you reach agreement

If you reach agreement with the other party/parties, you may arrange to formalise the agreement by filing an Application for Consent Orders.

If you cannot reach agreement

If you cannot reach an agreement at family dispute resolution OR the other party fails or refuses to participate in family dispute resolution OR there is no appropriate family dispute resolution service available to you, then you must give the other party/parties written notice of your intention to start Court proceedings.

The written notice of intention to start a proceeding must set out:

• the issues in dispute; and
• the orders to be sought if a proceeding is started; and
• a genuine offer to resolve the issues; and
• a time that is at least 14 days after the date of the notice within which the proposed respondent is required to reply to the notice.

Duty of disclosure

Each party to a proceeding has a duty to the Court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner. This duty of disclosure is applicable to parenting proceedings.

Documents that may contain information relevant to a parenting proceeding may include, among other documents:

• criminal records of a party; and
• documents filed in intervention order proceedings concerning a party; and
• medical reports about a child or party; and
• school reports.

Filing in Court

If you have complied with these pre-action procedures and your parenting dispute remains unresolved, you may commence Court proceedings in the Federal Circuit and Family Court of Australia.

You must file a Genuine Steps Certificate and section 60I Certificate alongside your Court application.

A section 60I Certificate can be issued by a certified Family Dispute Resolution practitioner.

Family Violence and Child Abuse Exemption

You can seek an exemption from filing a section 60I certificate if:

• your matter is urgent
• the Court is satisfied there are reasonable grounds to believe that:
  • there has been child abuse and/or family violence by a party
  • there is a risk of family violence by a party, and/or
  • there is a risk of child abuse if there were to be a delay in applying to the Court.

If any of the above circumstances apply to you, you can seek an exemption by either:

• preparing and filing an Affidavit – Non-Filing of Family Dispute Resolution Certificate, or
• if you are filing an Initiating Application seeking interlocutory or interim orders, you can outline the reasons relating to urgency and/or risk in your Affidavit filed alongside the Initiating Application.

If you have been the victim of family violence or a child relating to the proceedings has been abused or is at risk of abuse, you must obtain information from a family counsellor or Family Dispute Resolution (FDR) provider about the services and options available to you.

Information is available by calling the Family Relationship Advice Line on 1800 050 321.

Obtaining the information from a family counsellor or FDR provider is not required where, in addition to the grounds listed above, the Court is satisfied there are reasonable grounds to believe that:

• there would be a risk of abuse of a child if there were a delay in applying for the order, or
• there is a risk of family violence by one of the parties.

If you require advice and/or assistance with your parenting dispute and would like to speak to an experienced family lawyer please do not hesitate to contact our team.