Exceptions to Mediation Requirement

The Family Law Act 1975 requires that before a party makes an application to the Court for Parenting Orders, genuine attempts at resolving the parenting dispute through mediation must be made. However, it also acknowledges that it may not always be possible or necessary for a party seeking to apply for Parenting Orders to first attempt family dispute resolution. 

Section 60I(9) of the Act sets out the following six (6) exceptions to the requirement, whereby in such circumstances the applicant does not need a certificate:

• The application is for a consent order, or is in response to another party’s application;
• There are reasonable grounds to believe that there has been child abuse or family violence by a party, or a risk of either of these;
• The application is made in relation to a contravention of a Pt VII Order, and “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”;
• Urgency;
• One or more of the parties “is unable to participate effectively in family dispute resolution”;
• Other circumstances specified in the Regulations.

The exceptions, in brief, are where the applicant is seeking Consent Orders, or is responding to another party’s application; where there are reasonable grounds to believe that there has been child abuse or family violence; where the matter involves contravention proceedings; where it is urgent; and where at least one of the parties “is unable to participate effectively in family dispute resolution”; or “other circumstances specified in the regulations are satisfied”.

In relation to applications for Consent Orders, the rationale for this exception is presumably that it is unreasonable to require a dispute resolution process. In relation to cases where the application is in response to the other party’s application for Parenting Orders, the rationale is presumably that the requirements of section 60I would have applied to the other party’s application, and there is no point in imposing the same requirement when a party files a response.

The exception for applications involving contraventions or made in urgent circumstances applies to circumstances where a party is required to put on an urgent application where the applicant fears that the other party is about to remove the child from Australia. 

The exception where one or more of the parties “is unable to participate effectively in family dispute resolution” applies to situations whereby a party cannot participate because of an incapacity of some kind, physical remoteness from dispute resolution services, or for some other reason.

The rationale for the exception of the dispute resolution requirement in circumstances where there are reasonable grounds to believe that there has been child abuse or family violence by a party, or a risk of either of these, is that it would be unreasonable to require the applicant to engage in a dispute resolution process before filing an application. There is a further requirement in these circumstances, under section 60J of the Family Law Act 1975 that the Court cannot hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence. However, there is again an exception to this further requirement if the Court is satisfied that there are reasonable grounds to believe that:

• There would be a risk of abuse of the child if there were to be a delay in applying for the order; or
• There is a risk of family violence by one of the parties to the proceedings.

It must be remembered that the exceptions to the requirement for attempting family dispute resolution are limited. Further, what might appear to be a set of circumstances that falls within one of the exceptions to some people may not be consider such by the Court.

If you require assistance with a custody dispute or obtaining parenting orders, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.