Sunday, 8 February 2009

S.60I certificates change

Before a person can file in the Family or Federal Magistrates Court about their children, with some exceptions such as urgency, domestic violence or child abuse, they must have a certificate from a registered family dispute resolution practitioner- someone such as a mediator at a Family Relationships Centre.

The obligation to have one of these certificates is contained in s.60I of the Family Law Act.

The purpose of the certificate is clear- to encourage parents from sorting out their differences without automatically going to court, and hopefully never going to court.

The certificates have had four elements to them:

a) _______________________ (party or parties) did not attend family dispute
resolution with me and the other party or parties to the proceedings but
that
person’s failure to do so was due to the refusal, or the failure, of
the other
party or parties to the proceedings to attend.
(b)
_______________________
(party or parties) did not attend family dispute
resolution with me and the
other party or parties to the proceedings because
I consider, having regard to
the matters mentioned in subregulation
25 (2) [ domestic violence and abuse
etc] , that it would not be
appropriate to conduct the proposed family dispute
resolution.
(c)
_______________________ (parties) attended family dispute
resolution with me
and all attendees made a genuine effort to resolve the issue
or issues in
dispute.
(d) _______________________ (party or parties) attended
family
dispute resolution with me and the other party or parties to the
proceedings
but _______________________ (party or parties) did not make a
genuine
effort to resolve the issue or issues in dispute.

The key to the power of these certificates is of course that the mediator can say that a party was not making a genuine effort. Because there is a requirment to lodge the certificate in court, this may be a powerful indication to a judge as to who is the problem.

Having said all that, the Governor-General has proclaimed (word file) changes to the certificates, to commence on 1 March. This change is to add a ground:

(e) _______________________ (party or parties) began attending family dispute
resolution with me and the other party or parties to the proceedings but I
consider, having regard to the matters mentioned in subregulation 25 (2),
that it would not be appropriate to continue the family dispute resolution.

Presumably it has been added so that those parties who should have been excluded from family dispute resolution but slipped through the cracks can now be excluded after family dispute resolution has started.

1 comment:

Law Student said...

Thanks for leaving this post. It has helped me clarify what a S.60I certificate does.