Aspects and challenges associated with issuing s60I certificates

1. SECTION 60I CERTICATES (FAMILY LAW ACT 1975)
STRAIGHT FORWARD - OR ARE THEY?
BACKGROUND – THE LAW
Purpose
 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 Part VII 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 Part VII
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 Part VII 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;
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2. (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 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
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3. (c) 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 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 CERTIFICATES
Section 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 paragraph 60I (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
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4. 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
1 contact 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.
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5. (3) If, after considering the matters set out in subregulation (2), the FDRP is
satisfied that family dispute resolution is appropriate then, subject to
Regulations 28 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.
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6. “GENUINE EFFORT”
What 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 paper Making 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 person’s
willingness to join in discussions and make compromises. If you
don’t 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?
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7.  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 person’s opinion the other person did not show willingness to join in
discussions and that the other person’s ideas were not compromises,
when these words are attached to the back of a certificate.
 What are the problems in labelling someone’s 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?
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8.  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?
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