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Can you skip mediation if it’s “urgent”?

9 November 2020

Parents looking to bring a court application in a parenting dispute must first attend Family Dispute Resolution (FDR) and receive what’s called a Section 60I certificate from the Family Dispute Resolution Practitioner. It is rare that FDR can be avoided but what if the application is ‘urgent’?

Once a section 60I certificate is obtained, it must be filed in court with the parenting court application.

There are some exceptions to getting the 60I Certificate, including where there are allegations of family violence, as well as in cases of “urgency”.

However, what parents consider to be urgent may be quite different to what the court considers to be urgent, as a recent case has shown.

The court registrar recently refused to accept a father’s Initiating Application for filing, as he did not have a section 60I certificate. He claimed the exemption of “urgency” applied and asked to have registrar’s decision reviewed.

The father attempted to file his application following the mother’s decision to relocate, with their five-month-old baby, to her parents home, which was more than two hours drive from the couple’s former home.

The father sought orders for the mother to relocate back to the area of their former home with their child, so he could spend time with the baby. He sought to have (2), two-hour visits, and (1) four-hour visit each week.

He suggested the mother have sole use and occupation of their former home for this purpose.

The father’s solicitor submitted the matter was urgent because it was important that the father was able to spend regular short periods of time with the child in order to establish a strong bond with him, and that without court intervention compelling the mother to return to the area, this would not happen.

However, the father gave no evidence about having sought any kind of mediation to resolve the parenting issues.

The judge said there were a number of reasons parents were told to attend Family Dispute Resolution:

  • It is better if parents make their own arrangements for their children. They know their children, they know their different personalities, attachments and views. They are aware of what they can offer their children in light of their work commitments, where they live and any issues they may be suffering from.
  • FDR practitioners are trained to assist people to examine their situation and endeavour to reach an agreement.
  • It is better for parents if they can stay out of an adversarial system if possible.
  • The court system has insufficient resources to deal with all matters in as timely a fashion as the parents and community would like.

The judge added that not all matters could stay out of court or were suitable for mediation – such as when there are issues of family violence, drug use or alcohol abuse, serious mental health issues or where one parent has unrealistic expectations or ulterior motives.

The judge said there were no such issues in this case and the father had not put forward any evidence in his affidavit about whether he had attempted to resolve the matter with the mother. The father had not even asked the mother if she was relocating to her parents home permanently, or if the arrangement was temporary, and had not given any evidence of making enquiries about the availability and timeframes for attending FDR.

Further, the parents were communicating. The father had seen the child face to face at least once, and the mother had sent him photos and had arranged for him to see the child via Skype.

The judge dismissed the father’s application, as it was not “urgent” and that resolution outside the courts could be a possibility.

If you are in dispute about children’s matters and considering making an application to the court, you should firstly consider obtaining a section 60I certificate and get advice from a family lawyer in relation to whether your circumstances meets one of the exceptions.

To make a fixed cost appointment to discuss your personal circumstances, please phone us on 3221 4300 or email [email protected]

Inage accompanying article about mediation, by Michael Lynch Family Lawyers
2020-11-04T10:49:08+10:00

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