Going to court about your children: Step 1- getting the certificate
Obtaining a certificate from a registered family dispute resolution practitioner is now compulsory before going to the Family Court or Federal Magistrates Court about children’s matters, except in limited circumstances. When filing your application to court, you must also file the certificate.
The Howard government was quite clear in trying to break the culture of going to court, except as a last resort, and trying to encourage people to attend dispute resolution first, in the hope that they will come with a result that they agree to, rather than slog it out in a bitter and expensive court case.
Part of this system was achieved by funding free family realtionship centres in many parts of Australia (although you do not have to go there to have a certificate- many Relationships Austrlia centres for example can provide them)- and part of it was achieved by setting out rules of what the certificates said and when certificates were not needed.
What are the key things the certificates say?
Section 60I of the Family Law Act sets out the four options:
1. the person did not attend but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to attend;
2. the person did not attend because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;
3.the person attended and that all attendees made a genuine effort to resolve the issue or issues;
4.the person attended family dispute resolution but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues.
Note: When an applicant files one of these certificates the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution and in determining whether to award costs against a party.
Obviously you would not a certificate that the other party did not attend because you failed to show up, or a certificate that you failed to make a genuine effort- because the judge will read these certificates and may take a dim view of you. This may now be particularly important as you may have the one judge from the beginning of your court case to the end- and as they say- “first impressions count”.
What are the exceptions?
This is governed by section 60I of the Family Law Act which says that the certifciates are NOT required when:
-it is an application for consent orders
– it is in response to somebody else’s application in the same proceedings about children
– the COURT is satisfied that there are reasonable grounds to believe that
(i) there has been abuse of the child by one of the parties to the proceedings; or (ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
-the application is made in relation to a particular issue, AND
a children’s order has been made in relation to that issue within the past 12 months before the application is made AND
the application is made in relation to a contravention of the order by a person AND
the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
– the application is made in circumstances of urgency; or
– one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
-other circumstances specified in the regulations are satisfied. [ There are currently no other circumstances.]
There are technical rules about what is “family violence” and “abuse”. Ultimately, if you want to file proceedings without a certificate, you have to convince a Registrar of the court when filing that you have met the exemption [ other than for applciations for consent orders to the Family Court, eg by letter pointing out the portions of your affidavit showing that you have made out the exemption]. If you do not, then you will probably have to go through the process of obtaining a certificate.