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FOr the past 6 years I have had shared custody of my neices with their father. The time they have spent in my care at my house has been on average 3 nights a week. SOmetimes it has been a lot longer than this depending on whether or not their father has been able to cope. Last year he moved into our house and the children stayed with me full time, while he went to his girlfreinds 2 - 3 nights a week. My parents also live with me. The children's mother is not in the picture and has not seen them for the past year, before this it was sporadic visits.

at the start of this year the children moved out with their father and I was made aware that he wished to phase us out of the childrens lives. Now the children see me as their mother figure, I have been there for them, provided for them, taken care of them and loved them for the past 6 years. we have an incredible bond, and after losing their mother the last thing they need is to loose a significant person in their life who they have had such a meaningful relationship with.  I went to see a lawyer and we were referred to mediation which has been a slow process. SO far this has taken 4 months and nothing has happened except the father has cut down our days from the agreed 3 days a week to 2 days a week.the children were due this weekend and he did not bring them. He made no effort to phone us and let us know where they were, and it was only after repeated messages being left for him and our lawyer ringing him that he contacted us back and let us know he would not be bringing them around. He has totally disregarded the verbal agreement we had in place.

Can he do this? How do I proceed legally with this? I am scared that he is going to cut all contact before we can get a joint mediation meeting. is my lawyer able to proceed straight to court without mediation?

Mediation is a requirement is almost all cases

Under the Family Law Act, A certificate from a registered Family Dispute Resolution (mediation) Practitioner (FDR practitioner) is required before an application can be filed in court.

There are a number of very limited grounds to bypass this requirement.

There are 4 types of certificates:
"XXXXXXXX made a genuine attempt to mediate"
"XXXXXXX did not make a genuine attempt to mediate"
"The other party refused to participate in mediation" and
"This matter is not considered suitable for mediation".

Should you approach an approved FDR practitioner and the other party refuses to participate, you would be issued the appropriate certificate, which would satisfy the legal requirement to attempt FDR before filing in court.

As an aunt you would certainly have legal grounds to make an application.

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

Requirements for Primary Dispute Resolution

As of 1 July 2007 parties wishing to apply for an order under Pt VII must first attend on a registered family dispute resolution practitioner in an attempt to try and resolve the matter.

A certificate pursuant to s 60I(8) must be obtained from a registered family dispute resolution practitioner. The certificate from the family dispute resolution practitioner can be in one of four forms:

    (a) that the person did not attend family dispute resolution because of the other parties' failure to attend (s 60I(8)(a))

    (b) that the person did not attend family dispute resolution because the practitioner considers it would not have been appropriate (s 60I(8)(aa))

    (c ) that the person attended family dispute resolution and all attendees made a genuine effort to resolve the issues in dispute (s 60I(8)(b)), or

    (d) that the person attended family dispute resolution but that person, or the other party, did not make a genuine effort to resolve the issue (s 60I(8)©).

The only exceptions to the requirement to attend family dispute resolution before filing an application are set out in s 60I(9). The requirement to file a certificate from a family dispute resolution practitioner does not apply if:

        (a) the application is made by consent of all parties or in response to an application made by another party, or

        (b) the court is satisfied, on reasonable grounds, that there has been abuse/family violence or there is a risk of abuse/family violence of the child by a party, or

        (c ) the application relates to a particular issue AND a Pt VII order has been made in the preceding 12 months AND the application relates to contravention AND there are reasonable grounds to believe that the respondent has shown a serious disregard for their obligations under the order, or

        (d) the application is urgent, or

        (e) one or more of the parties is unable to participate effectively in family dispute resolution (including for reasons associated with remoteness), or

        (f) by reason of any other circumstance set out in the regulations.

Executive Secretary - Shared Parenting Council of Australia
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