One of John Howard’s notable achievements in 2006 was his decision, after canvassing
submissions from many interest groups including fathers’ associations and professionals
associated with the welfare of children, that the prior practice of the Family Court and the Federal Circuit Court being the first port of call when disputes between parents about children arose, needed significant revision. It was ultimately concluded that, ideally, such disputes should be determined in a non-adversarial manner, somewhere other than a court environment, if at all possible, and that courts should only decide such issues as a matter of last (and not first) resort.
A variety of possible means of deciding parental disputes were considered by legislators
including setting up new tribunals which would not be bound by rules of evidence to hear such matters. The prime objective was to ensure that children’s interests should be the paramount consideration howsoever parenting disputes were to be resolved.
After much consideration and public discussion, it was concluded that alternative dispute
resolution (“ADR”) was the way forward and a number of government-funded local Family
Relationship Centres (“FRCs”) were established to provide parents in conflict over, for
example, how, where and by whom their children should be cared for, with professional, skilled and empathic mediation services at little, or no cost to help parents reach agreements themselves about their children’s welfare – rather than have decisions imposed upon parents and their children by a court.
The Family Law Act was appropriately amended to provide that a parent could not, except in exceptional or urgent circumstances, commence an application in a court for parenting orders until one or both parties had attended, or at least attempted, mediation and obtained an appropriate certificate from a mediator known as a “section 60I certificate.”
Thereafter, the “Section 60I Certificate” became a prerequisite for a parent wishing to commence court proceedings.
FRCs have, since their establishment in 2007, proved effective in assisting parents to reach
agreements about arrangements to be made for their children’s care, by the provision of a
professional mediation assistance by a variety of professionals including Family Dispute
Resolution Practitioners (“FDRPs”) who provide mediation between parents – which is also
known as “family dispute resolution” or “FDR”. FDR undertaken by an FRC can take up to 3 months or more to conclude. Many excellent “private” (non-FRC) FDRPs provide FDR on a private (and more expensive) basis – but at greater speed. If time is of the essence and cost is not a significant issue, then private FDR is a good alternative than using an FRC.
FDRPs in FRCs, and private FDRPs across Australia, have, since 2007 have helped many
parents reach agreements about children in the interests. There is a small proportion of matters where parental disputes are not resolved by FDR which require determination by either the Family Court of Australia (complex matters) or the Federal Circuit Court of Australia (more straightforward matters).
More than 20 years on, the requirement of FDR in parental disputes and the decision to establish publicly funded FRC’s, appear both soundly-based and prescient. Many parents and children, together with their extended families and society as a whole, have good reason to acknowledge the benefits of those decisions.
O’Brien Connors & Kennett’s Clive Mills is an FDRP.
Clive can be contacted at OCK’s Dee Why office on 9982 1655.