27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18


Appendix 3: Practice and Procedures of the Family Court of Australia in parenting cases raising issues of family violence



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Appendix 3:

Practice and Procedures of the Family Court of Australia in parenting cases raising issues of family violence


The outline that follows focuses on the path through the Family Court available to families involved in parenting proceedings. The outline does not attempt to take into account the permutations that may arise where parenting proceedings are combined with other matters, such as property proceedings.

1. COMPULSORY PRE-FILING DISPUTE RESOLUTION

Family Dispute Resolution – threshold for accessing the federal family law courts

Family dispute resolution is a process by which a neutral, independent family dispute resolution practitioner assists people to resolve all or part of their disputes arising from separation or divorce.192 The form that family dispute resolution (FDR) may take may vary, and can include mediation and conciliation.193 From 1 July 2008, families wishing to apply to the federal family law courts for parenting orders must first obtain a certificate under section 60I of the Family Law Act 1975 from an FDR practitioner, or come within the exceptions to doing so.194

The object of this restriction on access to the federal family law courts is to ensure that families make a genuine effort to resolve parenting disputes through FDR before applying for a parenting order.195 Unless an exception to compulsory FDR applies, the courts cannot accept an application for parenting proceedings unless the application is accompanied by a section 60I certificate. However, the courts are not required to look behind this certificate to, for example, determine if dispute resolution occurred. The court is not directed to consider the certificate as a source of information about the families and their needs. For example, paragraphs b) and e) of the section 60I certificate note that in the practitioner’s opinion family dispute resolution is not appropriate for the family, having regard to a number of factors including whether the ability of a party to negotiate freely is affected by a history of family violence.196

However, the Court is not required to give weight to the kind of certificate that was issued. The requirements of the Family Law Act are satisfied, and court proceedings may commence, merely if a section 60I certificate is filed with an application.

Families are not required to attempt FDR if the Court is satisfied that there are reasonable grounds to believe there has been child abuse, or there would be a risk of child abuse if parenting proceedings were delayed. Families are also not required to attempt FDR if the Court is satisfied that there are reasonable grounds to believe there has been, or there is a risk of family violence.197 This is further discussed below. The other exceptions to compulsory FDR are:


  • parenting orders sought with the consent of all the parties

  • applications made in circumstances of urgency

  • applications in response to an application by another party to the proceedings for an order under Part VII of the Family Law Act

  • applications made in relation to a contravention of a Part VII order made within the period of 12 months before the application was made, and the court is satisfied that there are reasonable grounds to believe that the person behaved in a way that shows a serious disregard for his or her obligations under the order

  • where one or more of the parties is unable to participate effectively in FDR (whether because of an incapacity of some kinds, physical remoteness from dispute resolution services or for some other reason), and

  • other circumstances specified in the Family Law Regulations 1984.

FDR entails a further threshold to be satisfied before the Court may determine a parenting dispute. Where a section 60I certificate is not filed, and the party has been granted an exemption to attending compulsory FDR on the basis that the Court is satisfied that there has been abuse of a child or has been family violence, the Court may not hear the parenting case until the Applicant provides the Court a written acknowledgement indicating that he or she has received from a family counsellor or FDR practitioner information about services and options available in circumstances of violence or abuse. As advised on the acknowledgement form available on the Family Law Courts website, where an acknowledgement is not filed, the case may be adjourned until the Applicant has obtained the information and lodged the written acknowledgment with the Court.198

The requirement to provide the written acknowledgement does not apply to parties who have been granted an exemption to attending compulsory FDR on grounds unrelated to violence or abuse, for example urgency alone. The requirement also does not apply where there is a risk of child abuse if proceedings before the Court are delayed or there is a risk of family violence by one of the parties.199 This exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible.200

The Act also contains additional restrictions on the Court making orders in a parenting matter. Under section 65F, the Court must not make a parenting order unless satisfied that the parties have attended family counselling to discuss the issues in dispute. This requirement does not apply where the matter is urgent, or where there are circumstances that make family counseling inappropriate, such as family violence.201 The requirement also does not apply where parties are seeking orders by consent, or interim orders.202

Court ordered attendance at family dispute resolution or family counselling


The Family Law Act provides that the Court may refer parties to FDR or family counseling at any stage in the proceedings.203 The Act does not require the Court to consider whether the referral is appropriate in the circumstances. However, before doing so, the Court must consider seeking the advice of a Family Consultant about the services appropriate to the family’s needs.204

The Family Law Rules make specific provision for the Court to consider whether to refer families to FDR or family counseling, at specific stages along the court management pathway. This outline of the court events will flag these various stages.

Under the Family Law Act, communications made to an FDR practitioner or a family counsellor are confidential. Communications may be disclosed to uphold obligations under State and Territory law; to protect children from child abuse, to protect families from imminent harm; to report or prevent the commission of an offence, or with the consent of the relevant person.205 There is no provision to allow disclosure of family violence concerns if the concerns do not meet the criteria of child abuse, imminent risk of harm, the commission, or likely commission, of an offence or with consent. The admissibility provisions in Family Law Act further limit the dissemination of information provided in family counselling or family dispute resolution session. Only admissions by an adult that indicate a child has been abused, or is at risk of abuse, or disclosure by a child that that child has been or is at risk of abuse, may be admitted into family law proceedings provided that in the opinion of the Court there is not sufficient evidence of the admission or disclosure available to the Court from other sources.206

There are further exceptions to the restrictions on confidentiality and admissibility of communications made, where the family’s attendance at family counselling or FDR is court ordered. Where a party fails to attend the session, the FDR practitioner or family counsellor must report to the failure to the Court207 However, the Family Law Act does not permit the FDR practitioner or family counsellor to provide additional information, or comment on the sessions were they to occur.





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