Posts

How is a child custody dispute resolved in Queensland without going to Court?

Firstly, parenting disputes in Queensland are dealt with in the same way as for the majority of the Country.

This is because since most States referred their power over children’s matters back to the Commonwealth. Thus, the law concerning parenting after separation, parental responsibility, child support and custody come under Federal Legislation and Courts i.e. the Family Law Act 1975, Child Support Assessment Act 1989 and the Family Court and Federal Circuit Court of Australia.

Under the Family Law Act 1975 the focus is very much towards assisting parents to resolve parenting cases themselves, with the necessity of a Judge determining who children will live with and spend time with being a last resort.

The first step in Parenting Matters – Family Dispute Resolution and the Section 60I Certificate

Prior to commencing parenting proceedings,it is necessary to attend Family Dispute Resolution or FDR. This is in effect a Mediation where an independent mediator trained as a Family Dispute Resolution Practitioner (FDRP) assists the parties to make a parenting agreement, usually recorded in a Parenting Plan.

After the parties attend this mediation, the Registered Family Dispute Resolution Practitioner is required to produce a “mediation certificate” if requested by a party.[1]These certificates are commonly referred to as section 60I certificates and can be issued on any of the following grounds:

  • The client did not attend FDR due to the other party’s refusal or failure to attend;[2]
  • The client did not attend FDR or began attending FDR but the practitioner considered that it would not be appropriate to conduct or continue the FDR in the circumstances;[3]
  • That the client attended FDR and made a genuine effort to resolve the issues;[4] or
  • The client attended FDR but did not make a genuine effort to resolve the issues.[5]

[1]Family Law Act 1975 (Cth) s60I (7).

[2]Family Law Act 1975 (Cth) s60I (8) (a).

[3]Family Law Act 1975 (Cth) s60I (8) (aa) and (d).

[4]Family Law Act 1975 (Cth) s60I (8) (b).

 

Exceptions to needing a Section 60I Certificate

The following exceptions allow a party to commence proceedings without a certificate:

  • There has been abuse of the child by one of the parties;[6]
  • There is risk of abuse of the child if there was a delay in bringing the proceedings;[7]
  • There has been family violence or risk of family violence;[8]
  • The application is urgent;[9]
  • One party is unable to participate effectively in FDR;[10] or
  • One party has contravened Orders that were made within the last 12 months and the Application is in relation to that breach.[11]

What happens if you don’t have a section 60I Certificate?

The court will refuse to accept an Application for filing that does not have a certificate attached or an affidavit of non-filing of dispute resolution certificate with the appropriate exception addressed.

If a party attends FDR but does not make a genuine effort, the court may make an order requiring the parties to go to FDR again and the court might make a costs order against that party.[12]

Other issues before going to the Family Law Court

There are also strict pre-action procedures that have to be followed in the Family Court.[13] These do not exist in the Federal Circuit Court;however, it is good practice to follow them.[14]

Here a party must provide the pre-action brochure to the other party and engage in settlement discussions.[15]Also, forward a notice of intention to commence proceedings.[16] This notice must set out the issues in dispute, the orders being sought, a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).[17]


[5]Family Law Act 1975 (Cth) s60I (8) (c).

[6]Family Law Act 1975 (Cth) s60I (9) (b) (i).

[7]Family Law Act 1975 (Cth) s60I (9) (b) (ii).

[8]Family Law Act 1975 (Cth) s60I (9) (b) (iii) and(iv).

[9]Family Law Act 1975 (Cth) s60I (9) (b) (i).

[10]Family Law Act 1975 (Cth) s60I (9) (e).

[11]Family Law Act 1975 (Cth) s60I (9) (c).

[12]Family Law Act 1975 (Cth) s117.

[13] Family Law Rules 2004 r1.05.

[14] Federal Circuit Court Rules 2001 r1.03.

 

The party receiving the Notice is required to respond to this with their position[18]and hopefully this is a further incentive for the party to resolve their dispute without the Court making a decision.

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute.[19]

The pre-action procedures specifically state the parties must have regard to the following matters in relation to children:

  • The best interests of the children;[20]
  • Maintaining good co-parenting relationship;[21]
  • The potential damage to a child who is involved in the dispute;[22] and
  • Not seek orders that are not in the best interests of the children.[23]

The outcomes in custody disputes –without having to go to Court?

If an agreement can be reached between the parties in dispute there are several options for record the agreement:

  • Parenting Plan;
  • Consent Order.

A Parenting Plan is simply a written record of the agreement and only requires that the agreement be in writing, signed and dated.[24] A Parenting Plan is not enforceable, however if there is a further dispute requiring Court action the Judge will have regard to the most recent Parenting Plan when making a Parenting Order.[25]


[15] Family Law Rules 2004 Schedule 1 Part 3 (1).

[16] Family Law Rules 2004 Schedule 1 Part 3 (4).

[17] Family Law Rules 2004 Schedule 1 Part 3 (5).

[18] Family Law Rules 2004 Schedule 1 Part 3 (6).

[19] Family Law Rules 2004 Schedule 1 Part 1 (4).

[20] Family Law Rules 2004 Schedule 1 Part 1 (6) (a).

[21] Family Law Rules 2004 Schedule 1 Part 1 (6) (b).

[22] Family Law Rules 2004 Schedule 1 Part 1 (6) (c).

[23] Family Law Rules 2004 Schedule 1 Part 1 (6) (d).

[24] Family Law Act 1975 Section 63C.

A Consent Order is made with a higher degree of formality and is enforceable. Even though the Consent Order is the party’s agreement the Court can only make the Order if legislative requirements for Parenting Orders are followed, for example, the Court would only make the Order if the best interests of the subject children were the paramount consideration.[26]

For a Consent Order an appearance in court is not necessary and the Orders can be made “in chambers” with the documents being sent to the Court by post.

Hooper Family Lawyers at Victoria Point and Hooper Family Lawyers on the Gold Coast can assist parents in mediation and to resolve parenting matters before you have to go to court. Peter Hooper of our office is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner able to provide FDR to people wanting to reach their own agreements.

[25] Family Law Act 1975 Section 65DAB.

[26] Family Law Act 1975 Section 60CA.

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

  • The session with the children must be supportive and appropriate as to the dispute and separation
  • Decision making shouldn’t be a burden the children carry
  • A therapeutic element is needed to help children with coping, providing information and validating their experiences
  • Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

  • 82% of CI cases felt this method had improved the way their dispute was handled
  • 61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.