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Do I Have to Mediate Before Going to Court for Parenting Orders?

by | Sep 15, 2020 | Family Law

Yes… and no. It is fairly commonly accepted amongst family lawyers that the Family Law Act (Cth) 1975 imposes an obligation on parties to attempt to mediate a parenting dispute through family dispute resolution organisations like Relationships Australia prior to instigating Court proceedings. However a recent decision by Judge Jarratt of the Federal Circuit Court points out that understanding is not quite correct.

A process when you apply to get Court orders is that a parent or someone in a parenting role can apply by filing an Initiating Application with a Federal Circuit Court registry. You then receive a Court first return, when the Court will first look at the case properly. A Registrar can only refuse to accept that application for limited reasons, set out in the Federal Circuit Court Rules as follows:

  1. The Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
  2. The document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
  3. The rules relating to the electronic filing of documents have not been complied with.

In the case of Valack (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2020/1799.html), His Honour pointed out that this does not include any reference to a mediation having occurred. There is a separate requirement where a Judge may be unable to make Orders without mediation requirements being satisfied (or parties having a reasonable excuse why they cannot mediate, such as urgency or family violence), but this is a determination at the Judge stage, not the Registrar stage of accepting the application.

So what does this mean? The Registry cannot it appears refuse to accept your application because of a lack of a certificate showing you went to mediation – but if you do not have that certificate by the time you show up to Court in front of a Judge, you may not be able to get your Orders and you may be faced with a costs application from the other parent whose time and money you have spent coming to Court!

It’s still the best course of action to get that mediation certificate anyway, but this presents interesting opportunities for cases where mediation is delayed, or about to occur, or not likely to result in an outcome, where some time can be saved in terms of getting to Court. Speak to one of our experts now to see if this might apply to you, on 03 9614 7111.