Under the Family Law Act before parents seek orders from the Court, they generally need to first obtain a certificate (known as a Section 60I Certificate) confirming that they have attempted Family Dispute Resolution (“FDR”). FDR is a form of mediation.
There are some circumstances in which parents can proceed without a Section 60I Certificate, such as circumstances of urgency; where there is (or is a risk of) child abuse or family violence; or practical impediments to a party participating effectively (such as incapacity or physical remoteness from the FDR service).
The Federal Circuit Court in Newcastle recently considered an application of a father to be granted leave to file parenting proceedings for the return of an infant child, without the need to file a Section 60I Certificate.
The father argued that the matter was urgent, because it was important that the child spend regular short periods of time with him in order to establish a strong bond, and that without the intervention of the Court the mother would not return with the child to the area in which the parents had lived.
In reaching her decision the judge clearly stated that “it is preferable that the parents of children make their own arrangements for their children. They know their children; they know their different personalities, attachments and views.… 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 [court].”
The judge acknowledged that not all matters can stay out of Court, and sometimes there are issues which require Court intervention. She was also clear to recognise that every case is different, and while a Section 60I Certificate may be required in this matter, that was not to say that it would be the case in every other matter. She noted that in these circumstances the parents were communicating, the father had seen the child face-to-face at least once, and the mother had sent him photographs and arranged for him to see the child via Skype. The judge was not prepared to allow the father to commence court proceedings without first attending FDR.
The judge noted that “the Court must be mindful in every case of the object of section 60I, the benefit of creating space for parties to talk about their parenting matter before the ill-will so often caused by allegations and counter allegations takes hold, and the need to relieve pressure on court resources.”
This is an example of the Court encouraging parents to take control of arrangements for their own child, before rushing to hand the reins to a judge – someone who does not know the child and their individual idiosyncrasies.