Going through negotiations regarding your family and the parenting arrangements is not always a smooth sailing process. Often we find clients reach a certain point where negotiations between themselves and the other parent is not progressing and you might be at a stalemate.
You may have thought about going to Court regarding your parenting matter, as you are already aware of the other parent’s position regarding the parenting arrangements and you may hold polar opposite views on what would be best for the children.
A common question raised by clients during an initial consultation is ‘how do I go to Court’? The Family Court of Australia has outlined certain steps that need to be followed before you can file an Application with the Court relating to parenting matters.
The Family Law Act sets out that a party must attempt family dispute resolution before applying to Court for a parenting matter.
Family Dispute Resolution is often attempted by way of mediation. There are many mediation services to choose from. Some mediation centres provide a low-fee (or sometimes a no-fee) option for mediation, however, there may be some wait times to attend the mediation. There are also private mediators who provide mediation services within short notice, but charge on an hourly or daily rate.
To prove to the Court that you have attempted family dispute resolution, the mediator will issue a ‘Section 60I Certificate’ which will identify whether the parties attended mediation, or mediation was attempted and one party did not participate.
The Section 60I Certificate is valid to be used to support an Initiating Application to the Court for 12 months only.
Therefore, if you attempted mediation and may have been able to reach an agreement on the parenting arrangements which then fail, you should consider applying to the Court within the 12 month period, to avoid the need to go back to mediation which may cause further delays in resolving your matter.
There are specific circumstances where a Section 60I Certificate is not required to be obtained. This includes urgent applications for example if there is a need for urgent recovery of a child or the children back to your care, or there is a risk that the children are exposed to abuse, harm, or neglect.
Mediation is a helpful tool to use to understand the key issues in dispute, which is preventing your parenting matter being resolved or progressing further. By understanding what the issues in dispute are will allow you to understand what issues need to be outlined in your Application to the Court. If the issues remain unresolved then it will be up to the Judge to make a Final Order on what should happen based on your specific circumstances and what would be in the best interests of the children.
In the event that a Section 60I Certificate was not obtained by a mediator or mediation was not attempted, the Court may dismiss your Application for parenting matters. This is not only a timely but may also be a costly penalty to you. If you or the other party files an Application for a parenting matter where a Section 60I Certificate was not included in the Application, and if the Court dismisses that Application, a costs order may be granted against the Applicant for not following the pre-action procedures as required by the Court. We encourage you to seek legal advice from one of our lawyers to determine what steps you need to take to progress your matter.