Family dispute resolution - do I have to go?
Everyone involved in an application for a parenting order must participate in some type of family dispute resolution before starting their case in any court which has the power to make orders under the Family Law Act.
From mid 2006 this means going to some kind of dispute resolution as part of the court's 'pre-action procedures' unless you can show an exception. You can ask the courts about this.
From 1 July 2007, if you apply for a parenting order you must include with your application a certificate issued by a family dispute resolution practitioner that says that you have:
- been to family dispute resolution with the other person involved, and you both made a genuine effort to sort out the disagreement, or one or both of you did not make a genuine effort
- did not participate in family dispute resolution because the other person did not wish to go, or did not turn up
- or in the opinion of the family dispute resolution practitioner, you do not need to go.
Situations where a family dispute resolution practitioner may decide that you do not need to participate in dispute resolution may include where there is family violence (including intimidation which makes it hard for you to participate equally) or child abuse.
Situations where a certificate issued by a family dispute resolution practitioner is not required include where:
- the applicant is seeking a consent order (an order where both people have made an agreement)
- the application is in response to an application made by another person
- the situation is urgent, for example a child has not been returned or is missing
- one or more of the people involved cannot go to family dispute resolution because of 'incapacity' (which includes a person being unwell or living with a disability) or they live too far away from a family dispute resolution service
- there are reasonable grounds to believe that there has been (or there is a risk of) abuse of the child or family violence
- a court order made in the previous 12 months has been broken and the court finds that the person who broke it has shown a serious disregard for their obligations under the order.
A certificate is valid for 12 months from the date of mediation. If you cannot make decisions equally with your ex-partner because you feel intimidated, feel unsafe or there has been family violence you should tell the family dispute resolution practitioner immediately.
The court must still look at making an order that the persons involved go to family dispute resolution even if a person can prove one of the above exceptions applies to them.
The law will continue to change. Get legal advice as to how these changes will affect you.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.