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FAMILY LAW ACT 1975 - SECT 60I

Attending family dispute resolution before applying for Part VII order

Object of this section

             (1)  The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order ) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

Phase 1 (from commencement to 30 June 2007)

             (2)  The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order.

             (3)  By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.

             (4)  Subsection (3) applies to an application for a parenting order if the application is made:

                     (a)  on or after the commencement of this section; and

                     (b)  before 1 July 2007.

Phase 2 (from 1 July 2007 to 30 June 2008)

             (5)  Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if:

                     (a)  the application is made on or after 1 July 2007 and before 1 July 2008; and

                     (b)  none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in relation to the child.

Phase 3 (from 1 July 2008)

             (6)  Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after 1 July 2008.

Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order

             (7)  Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

Certificate by family dispute resolution practitioner

             (8)  A family dispute resolution practitioner may give one of these kinds of certificates to a person:

                     (a)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the 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;

                    (aa)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

                     (b)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;

                     (c)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;

                     (d)  a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution.

Note:          When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).

Exception

             (9)  Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

                     (a)  the applicant is applying for the order:

                              (i)  to be made with the consent of all the parties to the proceedings; or

                             (ii)  in response to an application that another party to the proceedings has made for a Part VII order; or

                     (b)  the court is satisfied that there are reasonable grounds to believe that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

                            (iii)  there has been family violence by one of the parties to the proceedings; or

                            (iv)  there is a risk of family violence by one of the parties to the proceedings; or

                     (c)  all the following conditions are satisfied:

                              (i)  the application is made in relation to a particular issue;

                             (ii)  a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;

                            (iii)  the application is made in relation to a contravention of the order by a person;

                            (iv)  the court is satisfied that 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; or

                     (d)  the application is made in circumstances of urgency; or

                     (e)  one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or

                      (f)  other circumstances specified in the regulations are satisfied.

Referral to family dispute resolution when exception applies

           (10)  If:

                     (a)  a person applies for a Part VII order; and

                     (b)  the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and

                     (c)  subsection (7) does not apply to the application because of subsection (9);

the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.

           (11)  The validity of:

                     (a)  proceedings on an application for a Part VII order; or

                     (b)  any order made in those proceedings;

is not affected by a failure to comply with subsection (7) in relation to those proceedings.

           (12)  In this section:

"dispute resolution provisions " of the Family Law Rules 2004 means:

                     (a)  Rule 1.05 of those Rules; and

                     (b)  Part 2 of Schedule 1 to those Rules;

to the extent to which they deal with dispute resolution.



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