If you have a dispute with your former spouse/partner in relation to the care arrangements of your children, you may be thinking of initiating proceedings in Children’s Court. However Court proceedings can be stressful and expensive and it is expected that taking such step is a last resort. Pursuant to s60I of the Family Law Act 1975 you are first expected to make a genuine effort to resolve your matter with your former spouse/partner with the assistance, if necessary, of a Family Dispute Resolution Practitioner (“FDR Practitioner”). Relationships Australia and Centacare are examples of organisations that provide Family Dispute Resolution services. If you make contact with one of these organisations both you and your former spouse/partner will be required to attend, at separate times, an intake appointment with an FDR Practitioner. Once both intake appointments have been completed and if it is considered appropriate, there will be a mediation between you and your former spouse/partner with the assistance of the FDR Practitioner. If you reach a resolution on this day, the FDR practitioner will draft a Parenting Plan for you and your former spouse/partner which effectively records the terms of your agreement. If:-
- The other party refuses to attend mediation; or
- No agreement is reached at mediation; or
- The FDR practitioner considers that it is not appropriate for a mediation to take place;
THEN you may request that the FDR Practitioner issue a s60I Certificate. This certificate is essentially your “Golden Ticket” to initiate proceedings in relation to children’s matters and indicates to the Court that you have made a genuine effort to resolve your dispute. Please note that pursuant to Regulation 26 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, a s60I Certificate is only valid for a period of 12 months. There are circumstances in which you can bypass the requirement of a s60I Certificate and these are set out in s60I(9) of the Family Law Act and some of which are set out in 1 – 4 below. Please note that if you are to initiate proceedings against your former spouse/partner without this certificate you will need to seek an order from the Court that the requirement for a s60I certificate be dispensed with but there must be a valid reason for this. For example, if the Court is satisfied that there are reasonable grounds to believe that:-
- There has been abuse of a child by one of the parties to the proceedings; or
- There would be a risk of abuse of the child if there were to be a delay in applying for the order; or
- There has been family violence by one of the parties to the proceedings; or
- There is a risk of family violence by one of the parties to the proceedings.
Further, the need to file a s60I Certificate will generally not be necessary if:-
- The Application is in relation to the contravention of existing orders.
- The Application is made in circumstances of urgency.
- One of the parties to the proceedings is unable to participate in Family Dispute Resolution because of an incapacity such as physical remoteness from such services.
For a comprehensive list of exceptions please see s60I(9) of the Family Law Act 1975.
If you need assistance or advice in relation to Divorce, Child Custody or Spousal Maintenance we encourage you to contact Adelaide Family Law on (08) 8113 3111 to organise an appointment with one of our experienced Family Law Practitioners.