Are you planning on filing an application for parenting orders? Wondering whether you have to mediate before court?
Under s60I(7) of the Family Law Act, a Court exercising jurisdiction must not hear an application for parenting orders unless the applicant files a section 60I certificate under s60I(8).
What are the 5 section 60I certificates I can be issued?
Under section 60I(8) the certificates that can be issued by a Family Dispute Resolution Practitioner are:
- That the parties did not attend FDR but the person’s failure to do so was due to refusal/failure of other party to proceedings to attend;
- That the person did not attend FDR because the FDRP regards that the matter is not appropriate for dispute resolution;
- The person attended FDR with the other party and that all parties made a genuine effort to resolve the dispute;
- The person attended FDR but that the person, the other party or another of the parties did not make a genuine effort to resolve the dispute;
- The person began attending FDR with the other party but that the FDRP considers that it would not be appropriate to continue dispute resolution.
For the certificate to be satisfactory, the mediation/invitation to mediate must have been in relation to the issue/issues that the order would deal with: s60I(8).
A section 60I certificate should be attached to an application to the Court, when filed: rule 4.02 Family Law Rules.
Can the court refuse to file my parenting application if I do not mediate before court?
The simple answer is no, the court cannot reject your application if you do not present a s60I certificate proving you have mediated, prior to filing your court application.
It has been held in a recent case by Judge Jarrett that a Registrar lacks power to reject the filing of an application on the basis of non-provision of a s60I certificate as under s60I(7) the absence of a s60I certificate acts as a barrier to HEARING the application rather than as a requirement for filing it: Valack & Valack [2020] FCCA 1354.
His Honour in that case stated that the decision as to whether an exemption applies under s60I(9) is a decision to be made by a Judge/Registrar in existing proceedings. For more information on this topic read our article: News Alert – you do not need a section 60I certificate to file your parenting application.
What are the exemptions to having to mediate before court and file a s60I certificate?
The exemptions to the requirement for mediation as set out in s60I(9) are as follows:
- If the applicant is applying for the order to be made by consent/in response to an application by another party.
- The court is satisfied that there are reasonable grounds to believe that
- There has been abuse of the child by one of the parties to proceedings;
- There would be a risk of abuse of the child if there were to be a delay in applying for the order
- There has been family violence by one of the parties to the proceedings;
- There is a risk of family violence by one of the parties to the proceedings;
- An Application for contravention is filed in relation to an issue less than 12 months after a final order is made and the court is satisfied All the following conditions are satisfied there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his/her obligations under the order.
- The application is made in circumstances of urgency; or
- a party is unable to participate effectively in mediation because of mental/physical health issues, location or some other reason.
- Other circumstances in the regulations are satisfied.
If no certificate is attached to an application when filed by a party, an affidavit must be prepared setting out the factual basis of the exemption claimed: r4.02 Family Law Rules.
The above exceptions are treated very narrowly by the court and will only exempt you from the requirement of mediation in the most serious circumstances. Even where there has been family violence, the court may not deem the circumstances serious enough as to warrant an exemption from the mandatory requirement of mediation. It is very common for a party to allege abuse/family violence. If an allegation of family violence/abuse is made, the court must not hear the application unless the applicant indicates that they have received information from a counsellor/Dispute resolution practitioner about the services/options available in circumstances of abuse/family violence (s60J(1)) and the court must refer the person to receive information on these matters prior to hearing the application: s60J(4).
What are the consequences if I fail to file a section 60I certificate without good reason?
Just because you can file an application without a section 60I certificate does not mean you should do so, unless there are genuine circumstances of urgency, or an exemption applies. If you file an application without a valid exemption, there may be negative consequences.
The Central Practice Direction and the Federal Circuit & Family Court of Australia Act confirm that the overarching purpose of the Act is to facilitate the just resolution of disputes quickly, inexpensively and efficiently as possible: s67 FCFCoA Act.
Parties are required to conduct proceedings in a manner consistent with the overarching purpose. A Judge must take into account any failure to comply with the overarching purpose and the Court can even order that a party’s lawyer bear costs personally: s68 FCFCoA Act.
One of the 10 core principles in the Central Practice Direction which should be followed when taking any step in family law proceedings is the importance of dispute resolution.
Prior to commencing proceedings, parties are required to make a genuine effort to resolve the dispute by participating in dispute resolution and complying with the pre-action procedures, unless unsafe to do so or an exemption applies: rule 4.01 to 4.03, Sch 1 Family Law Rules; section 60I Family Law Act.
Parties are expected to be pro-active in identifying when the matter is ready to proceed to dispute resolution and parties must make and consider reasonable offers.
A Genuine Steps cert must be filed with any application, outlining the parties compliance with pre-action procedures and the genuine steps taken by that party to resolve the dispute, or the basis of any claim for exemption from compliance with either/both of these requirements.
Other than in urgent circumstances or where there are genuine safety concerns, no application should be filed without notice to respondent of the intended application, and without genuine steps being taken to avoid the need for the application being filed.
Failure to comply with the pre-action procedures may result in costs orders or the application being stayed until the failure is rectified: Sch 1; rule 4.04 Family Law Rules.
Section 60I(8) also notes that the court can take into account the kind of certificate that is filed in considering whether to make an order referring the parties to dispute resolution (s13C) and in determining whether to award costs against a party (s117).
What if my section 60I certificate is accepted?
Even if your exemption is accepted, the Court is required on the first return date to consider making an order that you attend mediation with the other party: s60I(10).
The court will also take into account the kind of certificate in considering whether to make an order referring the parties to mediation (s13C) and in determining whether to make a costs order against a party under s117: s60I notation.
Also an important thing to note, the certificate issued must state that the mediation/invitation to mediate related to the issue/issues that the order would deal with: s60I(8). This means that you can’t invite your ex to mediate in relation to e.g. what school the children attend, discuss that discrete issue at mediation, then file an application to the court seeking orders with respect to the care arrangements of the children.
Does relocation qualify as an exception to attending mediation before court?
The simple answer is yes it can, but not always.
In the case of Conlon & Conlon [2019] FCCA 2195, the court dismissed an application by the Father without a section 60I certificate filed after the mother’s unilateral relocation with the 5 month old child as the court took the view that no exception under s60I(9) was made out.
In this case, the Mother relocated with the child to a place 2.5 hours drive from the father’s residence. The Father sought an exemption on the ground that the matter was urgent. The Court considered the objects of 60I, to encourage parents to resolve their matters via dispute resolution prior to filing an application to the court and held that there was no evidence of a risk of harm and the Father’s evidence indicated that he and mother were communicating. On these grounds Justice Terry said the father’s material did not make out that no resolution was possible outside of the court system and he was not satisfied that circumstances of urgency existed. He urged the parties to commence dispute resolution.
This case reiterates that the exceptions to the mandatory requirement of mediation in parenting matters are narrow and it is within the court’s discretion to determine whether an exemption to mediation under s60I(9) is made out such that the court will grant permission for the application to be heard without a s60I certificate. This will be determined on the merits of each individual case, having regard to the objects of the Family Law Act and the best interests of the children. The Court made clear that the parties cannot seek to avoid mediation due to their subjective views of the urgency in the circumstances of the case and parties should comply with the mandatory requirement to mediate prior to filing a court application, wherever possible.
Need to commence urgent court proceedings? Don’t want to mediate before court?
Prior to commencing court proceedings, you should obtain legal advice from an experienced family lawyer about whether or not your individual circumstances would permit the granting of an exemption to mediation, prior to the Court hearing your application.
Even where an exemption to mediation may be made out, given the objects of the legislation, and the paramount importance of dispute resolution as highlighted in the Central Practice Direction, it may be that participation in mediation is still appropriate.
To maximise the prospects of your application being heard and minimise the possibility that the court will refer your matter to mediation before making substantive orders, parties should attend mediation in the large majority of cases and make a genuine effort to resolve the dispute.
Where the parties appear polarised in their positions, mediation can still be helpful to narrow some of the issues or work out an interim arrangement whilst simultaneously plotting out a plan for a pathway forward, if an agreement cannot be reached in relation to all issues. Where there are allegations of family violence/abuse, it is for the mediator to determine whether the parties can negotiate freely. The forum of mediation that the mediator adopts is vital to ensuring the parties are able to negotiate freely without pressure or duress. In our experience, parties do not feel pressured or stressed by the process when the mediation occurs by zoom.
Contact us
If you are unsure whether your individual circumstances warrant the granting of an exemption to mediation, contact us on 3465 9332 to book a reduced rate clean slate consultation with one of our experienced family lawyers, to have a confidential discussion about your individual circumstances.
