Are you wondering whether you can go to court without doing mediation first? In parenting matters, it is a requirement, unless an exception applies, that you participate in Mediation with a Registered Dispute Resolution Practitioner and make a genuine effort to resolve your parenting dispute with the other party before you can file an application to the Federal Circuit Court seeking parenting orders. You will receive a certificate from the Registered Family Dispute Resolution Practitioner (called a ‘Section 60I Certificate’) which you are then required to attach to your application to the Court.
The requirement for mediation has been around for some time in order to encourage parents to develop cooperative parenting solutions themselves without the intervention of the court.
Family Dispute resolution is a practical way for separating parents to try and resolve their disagreements and make arrangements for the future of your children that you have control over.
The Court system has significant emotional costs, financial costs and time costs.
We recommend that you use the court system, only as a last resort.
When don’t I need to provide a certificate?
There are only a few exceptions to the rule that mediation is required before filing an application for parenting orders including, where there are reasonable grounds to believe that:
- There has been abuse of a child by one of the parties to the proceedings;
- There is a risk of abuse of the child if there is a delay in applying for an order (urgent/imminent risk of harm necessary);
- There has been family violence or there is a risk of family violence by one of the parties to the proceedings
OR
- the application is made in circumstances of urgency;
- one of the parties is unable to participate effectively in mediation (e.g. because of an incapacity of either party, because the other person is overseas, or because the other person is unable to be located in order to invite them to mediation);
- If you are filing a contravention application in relation to an order that is less than 12 months old and there are reasonable grounds to believe that the person who has contravened the order has behaved in a way that shows serious disregard for his/her obligations under the order.
If you seek to file a parenting application without a section 60I certificate, you must prepare and file an Affidavit of Non Filing of Family Dispute Resolution Certificate or explain in your Affidavit the reasons you are claiming an exemption from participating in mediation first.
Family Violence or Child Abuse Exemption
If you seek to apply for an exemption relating to family violence/child abuse, we recommend that you obtain information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) that are available to you in circumstances of abuse or family violence. You can get this information by calling the Family Relationships Advice Line on 1800 050 321 or by talking to a family counsellor or a Family Dispute Resolution Practitioner.
This doesn’t mean you have to participate in mediation but you are required to talk to a family counsellor or Family Dispute Resolution Practitioner about the options available.
In most matters before the Family Law Courts, there is an allegation of family violence. This will not necessarily meet the criteria of enabling you to obtain an exemption from Mediation. It depends on the allegation made and the severity of it as to whether a Court is likely to exempt you from having to participate in mediation first.
This is why its really important to talk to your Family Dispute Resolution Practitioner. They can recommend some alternatives to conducting mediation together that may enable you to effectively participate in the mediation process, even if there is a DVO, for example, by having the Mediation conducted by shuttle (in separate rooms).
Importantly, you should know that your Family Dispute Resolution Practitioner also has the capacity to issue a certificate to you which will exempt you from having to participate in mediation where the Practitioner is of the view that the matter is not appropriate for family dispute resolution. This means that if the Mediator is so concerned about the domestic violence that has occurred and your ability to effectively participate in a mediation with the other party as a result, even with precautions such as having the mediation in a separate room, the Mediator can give you a certificate stating their assessment that the matter is not appropriate for mediation, which you will then be able to use to attach to your application to the Court.
Need more information?
For more information about compulsory dispute resolution or if you are wishing to undertake mediation with your former partner in relation to parenting matters or asset division, contact us on 3465 9332 to book an intake appointment.
