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SECTION 60I CERTICATES (FAMILY LAW ACT 1975)STRAIGHT FORWARD - OR ARE THEY?

BACKGROUND THE LAWPurpose

The object of section 60I of the Family Law Act 1975 (FLA) is to ensure that all persons who have a dispute about matters that may be dealt with by an order under Part VII of the FLA make a genuine effort to resolve that dispute by Family Dispute Resolution (FDR) before the PartVII order is applied for.Certificates issued pursuant to section 60I of the Family law Act 1975 are filed in the Family Court (the Court) to advise the Court of the outcome of an attendance at, or attempted attendance at Family Dispute Resolution conducted by a Family Dispute Resolution Practitioner (FDRP). FDR is defined in section 10J of the FLA as a process (other than a judicial process) in which a FDRP helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other and in which the practitioner is independent of all of the parties involved in the process. The definition of a FDRP is found in section 10G of the FLA. Section 60I certificates can only be issued by an FDRP conducting the FDR process as defined. The Certificates are only issue with respect to matters relating to a child.Subject to section 60I(9), which contains circumstances where a person may be exempt from the requirement to attend FDR, a court exercising jurisdiction under the FLA must not hear an application for a PartVII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a FDRP under subsection(8). The certificate must be filed with the application for the PartVII order.

Types of Certificates (S60I(8))A FDRP may give one of these kinds of certificates to a person: (a) that the person did not attend FDR 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) that the person did not attend FDR with the practitioner and the other party or parties to the proceedings 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 FDR; (b) that the person attended FDR with the practitioner and the other party or parties to the proceedings and that all attendees made a genuine effort to resolve the issue or issues; (c) that the person attended FDR with the practitioner and the other party or parties to the proceedings 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) that the person began attending FDR with the practitioner and the other party or parties to the proceedings 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 FDR. The court may take the kind of certificate issued into account in considering whether to make an order referring to parties to FDR (see section 13C) and/or in determining whether to award costs against a party (see section 117).

Exemptions From Certificates (S60I(9))A person can be exempted from the requirement to file a certificate with their Part VII application where:(a)the application for the order: (i) is made with the consent of all the parties; or (ii) is in response to an application that another party has made for a PartVII 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) the following conditions are satisfied: (i) the application is made in relation to a particular issue; (ii) a PartVII order has been made in relation to that issue within 12 months before the new 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 FDR (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. If an exemption category is fulfilled and an application is filed in the Court for a part VII order, pursuant to section 60I (10), the court must still consider making an order that the person attend FDR with a FDRP and the other party or parties to the proceedings in relation to that issue or those issues.

REGULATIONS AND S60I CERTIFICATESSection 60I of the FLA works in conjunction with the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (The Regulations).

Regulation 26 FDRP Certificates(1)For the purposes of subsection 60I (7) of the FLA, an applicant may only file a certificate within 12 months after the latest family dispute resolution or attempted family dispute resolution.(2)The practitioner may give a certificate under paragraph60I(8)(aa) of the FLA only after having regard to the matters mentioned in subregulation 25(2).(3) A FDRP must not give a certificate under subsection 60I(8) of the FLA to a person more than 12 months after the person last attended, or attempted to attend, family dispute resolution about the issue or issues that the order, for which the application was made, would deal with. (4)A FDRP may give a certificate under paragraph 60I (8) (a) of the FLA only if the practitioner, or a person acting for the practitioner, has, at least twice, contacted each party who has failed to attend, with at least 1contact in writing:(a)giving the party a reasonable choice of days and times for attendance at family dispute resolution; and(b)telling the party that, if the party does not attend family dispute resolution:(i) the practitioner may give a certificate under paragraph 60I(8)(a) of the FLA; and(ii) the certificate may be taken into account by a court when determining whether to make an order under section 13C of the FLA referring the parties to family dispute resolution or to award costs against a party under section 117 of the FLA.(5) If the FDRP who is entitled to give a certificate under subsection 60I(8) of the FLA becomes incapable of giving the certificate, the certificate may be given on behalf of the practitioner by an organisation for which the practitioner has provided family dispute resolution services.Examples of incapacity: Death of the practitioner;Loss of accreditation;Inability to be contacted.

Regulation 25 FDRP Assessment of Suitability (1) Before providing family dispute resolution under the Family Law Act, the FDRP to whom a dispute is referred must be satisfied that:(a)assessment has been conducted of the parties to the dispute; and(b)family dispute resolution is appropriate.(2)In determining whether family dispute resolution is appropriate, the FDRP must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:(a)a history of family violence (if any) among the parties;(b)the likely safety of the parties;(c) the equality of bargaining power among the parties;(d)the risk that a child may suffer abuse;(e)the emotional, psychological and physical health of the parties;(f)any other matter that the FDRP considers relevant to the proposed family dispute resolution.(3)If, after considering the matters set out in subregulation (2), the FDRP is satisfied that family dispute resolution is appropriate then, subject to Regulations28 and 30, the FDRP may provide family dispute resolution.(4)If, after considering the matters set out in subregulation (2), the FDRP is not satisfied that family dispute resolution is appropriate, the FDRP must not provide family dispute resolution.

GENUINE EFFORTWhat does it mean? Genuine Effort is not defined in the FLA or the Regulations.The Attorney-General's Department provides some guidance by suggesting that genuine effort involves a real, honest exertion or attempt, realistically directed at resolving the issues. However, it is argued that this is too subjective a criterion. In her paperMaking a genuine effort in family dispute resolution: What does it mean?(Social Science Research Network Electronic Library) (November 2008), Hilary Astor provides a definition of genuine effort as follows:

attending family dispute resolution, and willingness to consider options put forward by the other party or the family dispute resolution practitioner, and willingness to consider putting forward options for the resolution of the dispute, and willingness to focus on the needs and interests of the children, to the best of the parties ability.

The Certificate has notes attached to it on page 2 as follows:

(c) All parties attended and made a genuine effort to resolve the dispute. This means all parties made a genuine effort during the dispute resolution process but were unable to resolve the dispute. It is up to the family dispute resolution practitioner to make up their mind if a person has made a genuine effort based on the individual circumstances. A practitioner might take into account, each persons willingness to join in discussions and make compromises. If you dont come to an agreement, it is not necessarily because you did not make a genuine effort. There can be many reasons why people have different views about an issue. A practitioner should not issue a certificate where parties come to an agreement in relation to the issues in dispute.

QUESTIONS TO CLARIFY AND CONFUSE THE ISSUE

If there is no definition of genuine effort in the Act or the Regulations, how do you decide if there is genuine effort?

How do you deal with a client who is insistent that you should issue a certificate that the other person did not make a genuine effort because in the persons opinion the other person did not show willingness to join in discussions and that the other persons ideas were not compromises, when these words are attached to the back of a certificate.

What are the problems in labelling someones effort as not being genuine?

Must a FDRP give a Certificate upon request?

In what circumstances might you issue a certificate following an apparent agreement in FDR?

Can more than one service issue a certificate to the same people?

What confusion can be caused by issuing certificate (a)it says I did not attend?

Can a Certificate be issued in relation to Property matters?

How long after the mediation or attempt at mediation can a FDRP issue or be requested to issue a Certificate.

What are the consequences of issuing a certificate?

Does the FLA ask FDRPs to step outside the role of an FDRP by requiring the FDRP to notify the parties of potential costs consequences?In relation to issuing the certificate are there any circumstances where the reason for declining an invitation to attend FDR are relevant?

Can you change the wording in the Certificate?

Is there an obligation to advise a person if an exemption to the requirement for a certificate may apply?

Who gets the certificate?

Are you required to sign the certificate and put your name on it?

What are reasonable time frames for waiting to issue a non-attendance certificate?