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    The rare exceptions for FDR

    Nov 14, 2019 1:54:50 PM

    In a recent blog post, we explored the mandatory requirement for parties to attempt to resolve their parenting dispute with the assistance of family dispute resolution (‘FDR’) prior to applying to the court for parenting orders: Family Law Act 1975 (Cth) s 60I(1). However, s 60I(7) provides various exceptions to this mandatory requirement such as the following:

    • Where parties are applying for Consent Orders: s 60I(9)(a)(i);
    • Where a party is applying for orders in response to another party’s application: s 60I(9)(a)(ii);
    • If the court is satisfied there are reasonable grounds to believe there has been abuse, there is a risk of abuse or family violence, or there has been a family violence order: s 60I(9)(b);
    • If parenting orders that were made in the past 12 months have been contravened, and there is reasonable grounds to believe the contravening party has behaved in a way that shows serious regard for their obligations under the order: s 60I(9)(c);
    • If the application is urgent: s 60I(9)(d);
    • If one or more parties cannot effectively participate in FDR (for example due to incapacity or physical remoteness from FDR services: s 60I(9)(e); or
    • If other circumstances specified in the Family Law Regulations 1984 are satisfied: s 60I(9)(f).

    The court treats these exceptions very narrowly and will only allow an exception to the mandatory requirement in the most serious of circumstances. For example, it is not uncommon for parties to allege abuse or family violence in parenting proceedings. However, if an exception applies due to abuse or family violence, the court must not hear the application unless the applicant indicates in writing that they have received information from a family counsellor or FDR practitioner about the services and options available in circumstances or abuse or violence: s 60J(1). If the applicant has not indicated that they have received this information, the court must refer them to obtain information about these matters: s 60J(4).

    Recently, in Conlon v Conlon [2019] FCCA 2195 (13 August 2019) (‘Conlon’), the court dismissed a parenting application filed by the Father without a s 60I certificate after the mother unilaterally relocated with their 5-month-old baby to a place that was 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 s 60I, namely the benefit of parents making their own arrangements for their children and in doing so avoiding the adversarial, costly and time-consuming nature of court proceedings. There was no evidence of a risk of harm and the Father’s evidence indicated that he and the Mother were communicating. On these grounds, Terry J held, “It is not clear on the father’s material that no resolution is possible outside the court system … I am not satisfied that circumstances of urgency are made out … I would urge him to also put the wheels in motion to commence family dispute resolution.”

    Conlon demonstrates that while there are some narrow exceptions to the mandatory s 60I certificate requirement in parenting cases, ultimately it is at the court’s discretion whether to grant leave to any application that is filed seeking an exemption. Parties cannot seek to avoid FDR due to their subjective views of the urgency or circumstances of the case and should ensure to comply with the mandatory requirement wherever possible. Ultimately, the court will determine any application for exemption based on the merits of the case, the objects of the legislation and the best interests of the subject children.

    If you have further questions, please contact Matthew Sibley at msibley@franklaw.com.au

    This is not legal advice. 

    Matthew Sibley

    Written by Matthew Sibley