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Children’s Orders

Children’s Orders

Introduction

In order to commence children’s matters in either the Family Court or the Federal Circuit Court of Australia you will generally have to file a 601 certificate at the same time where you want to obtain parenting orders. Notwithstanding the requirement for a 601 Certificate (dispute resolution certificate) be issued before filing for parenting proceedings there are some exceptions to the requirement.

When will you normally be issued with a Section 60I Certificate if:
• The other party refuses to attend family dispute resolution;
• The Practitioner/Mediator considers that it is not appropriate to conduct family dispute resolution (i.e. where there is child abuse or family violence);
• You have attended at family dispute resolution and have both made a genuine effort to settle your parenting matter;
• You have attended at family dispute resolution and the other party has not made a genuine effort to settle your parenting matter; or
• You have attended at family dispute resolution and the Practitioner/Mediator has formed the view once commencing dispute resolution that it would not be appropriate to continue to hold    discussions.

The issue of a Section 60I Certificate will in many circumstances be a matter for the Practitioner/Mediator to determine whether it is appropriate in all the circumstances to conduct family dispute resolution.

The Exceptions

There are some limited circumstances wherein you can commence Court proceedings in relation to parenting issues without a section 601 certificate including:

  • Where there are urgent circumstances;
  • If you have resolved your parenting issues and are filing an Application for Consent Orders, then you do not need a family dispute resolution certificate;
  • Where there are reasonable grounds to believe that there has been abuse to the children by one of the parties;
  • Where there are reasonable grounds to believe that there is a risk of the children suffering abuse by one of the parties if there is a delay in applying to the Court for Orders;
  • Where there are reasonable grounds to believe that there has been family violence by one party;
  • Where there are reasonable grounds to believe that there is a risk of family violence being committed by one of the parties; and
  • Where one of the parties is unable to meaningfully engage in family dispute resolution because of their physical remoteness or other incapacity.

Whilst these grounds can seem quite broad, the practicality is that it can be difficul to proceed without a certificate, in what can often be a very short timeframe, to provide the Court with the evidence that is needed to show that there are reasonable grounds to believe that any of these risk factors exist.

Relevant Case Law

In a recent child relocation case, Conlon [2019] FCCA 2195  (13 August 2019), the parties had a five (5) month old baby. There was a parenting dispute and the Father had not obtained a family dispute resolution certificate. The Father returned from a weekend away to find that the Mother and baby have moved to a town 2.5 hours away to live with the Mother’s parents. The Father urgently commenced Court proceedings asking that the Court make Orders for the baby to live with the Mother in the town they had left if the Mother returned with the baby. Alternatively, the Father asked the Court to make orders for the baby to be returned to that town for the Father to have primary care.When the Court heard the matter, the Father was asked why he hadn’t sought family dispute resolution. The Father’s Solicitor responded by saying ‘do you have any idea how long that takes?’ The Father had not given any evidence about the time frames for the issuing of a family dispute resolution certificate. There was also no evidence of family violence or risk to the child.

The Court said that, by way of example, family dispute resolution (and obtaining a Section 60I certificate) may not be appropriate where there is family violence, drug use or alcoholism. Other examples included where one parent has a personality disorder or serious mental illness or where one parent simply has wildly unreasonable expectations. For example, where a parent is staunchly of the view that an equal time arrangement is necessary for a very young child.

The Court in Conlon found that it would be entirely appropriate for the Father to have attempted family dispute resolution. The Court also stressed the importance of making sure that parties have the chance to decide parenting arrangements for their children. The Court noted that in most cases, parents are the best people to make a decision about what will be the best arrangements for their children.

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