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Family Dispute Resolution - Phase 3

From 1 July 2008, parties in all proceedings concerning children will need to produce a certificate from a family dispute resolution practitioner before making an application to the court.

This is the the third and final phase in the implementation of the pre-action procedures, compelling parties to:


"make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for" (s 60I(1)).

The Governer General has fixed 1 July 2008 by proclamation as the date on which Phase 2 ends and Phase 3 begins. 

The Phase 2 exception to the FDR practitioner certificate (that either party applied for a parenting order before 1 July 2007) will no longer apply. 

Under Phase 3, the requirements of s 60I(7) to s 60I (12) will apply to all parenting proceedings commenced in all courts.

4MYDAUGHTER

AG Media Release: Family Dispute Resolution for all Parenting Orders

—————– Original Message —————-
From: "Media Releases" <mediarel@lstsvr1.ag.gov.au>
To: "Media Releases" <mediarel@lstsvr1.ag.gov.au>
Subject: ATTORNEY-GENERAL MEDIA RELEASE - FAMILY DISPUTE RESOLUTION FOR ALL PARENTING ORDERS. [SEC=UNCLASSIFIED]
Date: Fri, 6 Jun 2008 17:00:37
6 June 043/2008

Family Dispute Resolution for all Parenting Orders

All people applying to the Family Court for a parenting order must first attend family dispute resolution under changes to family law, except where there is child abuse, family violence or in matters of urgency, Attorney-General Robert McClelland said today.

The changes will take effect from 1 July 2008 and are designed to help separating families resolve disputes without litigation. The changes were foreshadowed as part of the 2006 family law reforms.

The new requirements affect all applications to the court for a parenting order under Part VII of the Family Law Act 1975 relating to children's matters, irrespective of whether previous applications to the court have been made.

"Currently, people are only required to attend family dispute resolution if they have lodged a new application for a parenting order after 1 July 2007," Mr McClelland said.

"These new measures reinforce that the Government is determined to develop a culture where access to the Courts in family disputes is a matter of last resort."

"The exceptions to family dispute resolution will remain in cases where there is child abuse or family violence, or in matters of urgency," Mr McClelland said.

A parenting order is a set of directions made by a court about a couple's parental responsibilities. When a parenting order is made, each person affected by the order must follow the order.
Media Contact: Adam Sims 0419 480 224
Bizarre.- actually formalising a denial to justice on the basis of a 'parental' type view of the applicants.

"Oh you two - if only you could sit down over a nice cup of tea'

YOU IDIOTS.
THE REASON PEOPLE GO TO COURT IS BECAUSE THERE IS ENTRENCHED CONFLICT.
THESE ARE THE HIGH END CASES - MOST PEOPLE CAN SORT THINGS OUT.

So instead of reducing the things which CAUSE high end cases -
  1. Grab for money - usually women
  2. Grab for children - usually women
  3. Complex and silly law - lawyers busy with that

YOU DENY EVEN MORE JUSTICE and ARROGANTLY ASSUME some psychobabbly trained interferon will 'help' the adults.

people who have 12 years of constant systematic abuse from one partner (and is rewarded by courts and government for doing so)  - this is not going to change over some 'family' (you idiots) resolution center for them is it - it will just put another mindless administraive barrier to justice.

Why not put all people into some sort of 'detention centre' will they wait their access to justice. Of course you could put the men there and the women could and children could be removed BY DEFAULT to stay in their houses??

Denying cases and making it even more difficult to get speedy decisions is idiocy and continued systematic abuse.

 Maybe I am not explaining myself well enough
Jon Pearson said
Bizarre.- actually formalising a denial to justice on the basis of a 'parental' type view of the applicants.

"Oh you two - if only you could sit down over a nice cup of tea'

3) Complex and silly law - lawyers busy with that



Denying cases and making it even more difficult to get speedy decisions is idiocy and continued systematic abuse.

 

Jon you are making sense, particularly given the already ridiculous time frames for getting a Trial heard to bring things to a quick resolution and reduce legal fees getting there. (Mine took 4 years and the legal fees added up over this time were more than I earn in 5 years. Clearly a speedy trial would have saved me a lot of money.)

However, if you think you will 'get justice' simply by coming before a judge I think you are missing the point.

I agree with you that unfortunately our FRC's and mediators are generally very poorly trained to deal with and resolve the issues- by focusing on the 'perceived conflict' rather than the best alternatives for children. Unfortunately the psychobabble BS that most FRC and Mediators is driven by the likes of Jen McIntosh and as this offers no solutions other than 'stop the conflict' it is unlikely to affect the behaviour of litigious parents who want lawyers to do their bidding.

Luckily not everyone can AFFORD to waste these amounts of money and just the act of getting them into a room away from their lawyers can and often does result in both parents opting to 'sort out the arrangements' by consent.

I have witnessed a 'conflicting parent' coming to her senses in a POP course- and I can say emphatically that it was not anything that the course offered that made that parent change her view of the other parent- it was in her words' listening to the other participants and considering their views' that made her change her mind. So there is an argument that 'they really do have good outcomes' -even if it was nothing that the course offered apart from a peer group. For the other 5 participants on the course- nothing changed.  Obviously the courses, the mediation and counselling needs to improve dramatically in my anecdotal opinion.

Moving the onus to 'fix' things and actually provide results onto the FRC and mediators might actually force them to do their job better. I do like to be positive about this alternative because I believe our current Family Court system (and associated unethical lawyers) are not conducive to 'reducing the conflict' - they encourage you to 'win' at whatever the cost (that's how to drum up legal fees) and our law society stands by idly watching unethical lawyers continue to practice.

Courts in general should be a last resort- where criminals are brought to justice - not 'conflicting parents'.

So now the problem lies with the FRC and Mediators, its up to the government to properly fund and educate them so they are 'not just psychobabbly trained interferons' - which at the moment I would have to agree with you that's exactly what they are.

It's going to be a big task for them to start becoming more accountable for their funding and to stop being so influenced by 'feminist propaganda' or poor scientific research.
I have had no experience going through the dispute resolution process.

In my instance, the Mother didn't bother to turn up for the Case Assessment Conference.

I feel the new processes could be a good thing.

I thinks it's good that parents will be forced to think about parenting issues relatively early on in the process.

Its worth a crack.

And delay is not such a bad thing either.

I look back on where my head was a year ago, compared to where it's at today. I feel - as a SRL - That I have a much better chance of success now because time has passed and I have had time to process some baggage and get my life together.

I am glad I have had this time to sort my head out because nothing short of my best effort will suffice. I have regained, or regaining, my emotional intelligence.

4MYDAUGHTER
i think that frc is a waste of time, going to court, and having the court process over about 6 months quicker would be better for not entrenching conflict. the dely is horrible thing, from somone who had a preant stop contact for 8 weeks because that suited thier adgenda before they went to court. eg, they got invited to attend at frc, refused then ran off to court and stopped contact. the dely just killed me

Rarghhhhhhhhhh!!!!!!!!!!!!

Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
Monster,

I hear you.

I was so devastated (separation anxiety) i was put on anti-depressants for a period, 14 months ago. It's horrible when you are going through it.

But now i feel i am better postioned to win the 'war' - as apposed to the 'battles'.

This time next week I'll be in court for the Contravention Hearing. Feeling refreshed and renewed.

Into the fray!

4MYDAUGHTER
Sometimes the delay can work for you.

Interim orders allowed my partner to increase time with his child. It also gave his ex lots of opportunities to demonstrate her very entrenched, negative attitude. Something that we would not have had years of evidence of otherwise.

I know the immediate need for a parent is to resume or continue to have meaningful contact. For a child though, it is better to have a gaurantee of contact for the longer term.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 

Estopell Again!

I think the new process will only be a good thing when the agreements made at these mediations are enforceable.

Until then, they are a joke designed by Judges to create more employment for judges by refusal to enforce agreements made between parties that judges have not made enforceable.

Yes, Promissory Estoppel comes to mind, in Family Law it first started as the enforcement of engagement to marry and compensation for a breach of that promise or proposal.

An agreement to interact with a child is a subsidiary agreement to the agreement to marry and therefore as enforceable as the promise or engagement to marry.

Why are Lawyers and Judges so in disagreement with Promissory Estoppel because it reduces their workload by the agreement created at mediation are then enforceable.

Moderator Note
Not this chestnut again! This is 'theoretical' law! and has no practical application in Family Law

Last edit: by Sisyphus

No-Justice said
Why are Lawyers and Judges so in disagreement with Promissory Estoppel because it reduces their workload by the agreement created at mediation are then enforceable.

Moderator Note
Not this chestnut again! This is 'theoretical' law! and has no practical application in Family Law

  NJ, Lawyers and Judges (and even 1st year Law students) are in no disagreement with promissory estopple. We all agree it has NO relevence or application in this Jurisdiction.

Lets be very clear about who needs a PDR certificate

Section 601 of the Family Law Act 1975 (as ammended) states




FAMILY LAW ACT 1975 - SECT 60I

Attending family dispute resolution before applying for Part VII order

Object of this section


             (1)  The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order ) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

Phase 1 (from commencement to 30 June 2007)

             (2)  The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order.

             (3)  By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.

             (4)  Subsection (3) applies to an application for a parenting order if the application is made:

                     (a)  on or after the commencement of this section; and


                     (b)  before 1 July 2007.

Phase 2 (from 1 July 2007 to first proclaimed date)

             (5)  Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if:

                     (a)  the application is made on or after 1 July 2007 and before the date fixed by Proclamation for the purposes of this paragraph; and


                     (b)  none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in relation to the child.

Phase 3 (from second proclaimed date)

             (6)  Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after the date fixed by Proclamation for the purposes of this subsection.

Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order

             (7)  Subject to subsection (9), a court exercising jurisdiction under this Act 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 family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

Certificate by family dispute resolution practitioner

             (8)  A family dispute resolution practitioner may give one of these kinds of certificates to a person:

                     (a)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, 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)  a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because 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 family dispute resolution;

                     (b)  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;

                     ©  a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues.

Note:          When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).


The "KEY" word in the section is "APPLICANT" - The applicant is required to have attempted PDR, unless granted an exemption of very limited and specific grounds.

No where does the act say the "Respondent" must produce a PDR certificate. - Though refusal to attend PDR does expose them to a costs order.

Usually, if there has not been any PDR, despite the applicant seeking PDR before filining the application, and unless there are reasons justifying no attempt at mediation, the FMC usualy order the parties to attend PDR.

The Family Court is usually dealing with more complex cases where PDR is often not appropriate.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
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