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FMC to use the same processes as the FCA for Part VII Compulsory FDR

FMC now using the same processes as the FCoA for Part VII COMPULSORY FAMILY DISPUTE RESOLUTION

Commencing 1 March 2008, the Federal Magistrates Court of Australia will be adopting the same processes as the Family Court of Australia for the filing of applications for an order under Part VII of the Family Law Act 1975.

This means that a certificate will be required at the point of filing unless an exemption has been granted by a Registrar.

Practice Direction No 2 of 2007, Family Dispute Resolution applications for orders under Part VII Family Law Act 1975? will be substituted with Practice Direction No 1 2008, which will come into effect on 1 March 2008.

This sets out the requirement for the certificate to be filed at the same time as the application unless an exemption has been granted. Where a certificate is required and is not produced, the application will not be accepted for filing.

For more details about the new practice and procedures, see the Practice Direction at: http://www.fmc.gov.au/practice/html/012008.html

Family Dispute Resolution - Applications for orders under Part VII of the Family Law Act 1975

Practice Direction: No.1 of 2008

Practice Note No 2 of 2007 1 July 2007 is revoked and the following Practice Note is substituted

Introduction

From 1 July 2007, applicants wishing to apply for an order under Part VII of the Family Law Act 1975 will be required to provide a certificate from a registered family dispute resolution practitioner, unless they fall within the exception to this requirement under ss 60I(5) or (9). From a date yet to be proclaimed (expected to be 1 July 2008), the exception under section 60I(5) will cease to apply.

This requirement will apply to all applicants for an order under Part VII, including those seeking changes to an existing order.

This Practice Direction sets out the procedural requirements for applicants who seek to file an application for an order under Part VII of the Family Law Act 1975 in the Federal Magistrates Court of Australia

Practice Direction

This Practice Direction is effective from 1 March 2008

A certificate pursuant to section 60I(8) from a registered family dispute resolution practitioner must be filed with an application for an order under Part VII of the Family Law Act 1975 unless the applicant falls within one of the exceptions.

If the applicant contends that section 60I(7) does not apply because of ss60I(5) or (9), the applicant must set out the factual basis upon which the exception is asserted to apply in either:
  • the affidavit filed with the application pursuant to Rule 4.05 Federal Magistrates Court Rules 2001; or
If the factual basis for the exception is included in the affidavit filed pursuant to Rule 4.05, there will need to be some identification of those paragraphs to assist the Registrar in making a determination.

Amendments to the Federal Magistrates Court Rules 2001 will come into force from 1 March 2008 to delegate the powers under s 60I(9) to the Registrars. This will enable Registrars (usually Duty Registrars) to make a determination at the time a person seeks to file an application, about whether an exemption from filing the certificate can be granted. A person who is not satisfied with the Registrar's decision can consider review options set out in Division 20.2 of the Federal Magistrates Court Rules 2001.

If these requirements are not met and the applicant does not file a certificate or fall within an exemption, then the application will not be filed.

Section 60J

Where the exemption relied upon is that there has been abuse to a child by one of the parties to the proceedings or that there has been family violence by one of the parties to the proceedings, the application will be required to obtain information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to  Court proceedings) available in circumstances or abuse or violence and to provide a written acknowledgement of having received that information before the Court can hear the application.

An applicant must provide written acknowledgment of receiving the information in either
  • the affidavit filed with the application pursuant to Rule 4.05 Federal Magistrates Court Rules 2001; or
Obtaining the information is not required where, in addition to the grounds listed above, the Court is satisfied there are reasonable grounds to believe that:
  • there would be a risk of abuse of a child if there were a delay in applying for the order; or
  • there is a risk of family violence by one of the parties to the proceedings.
JOHN PASCOE AO
CHIEF FEDERAL MAGISTRATE
FEDERAL MAGISTRATES COURT OF AUSTRALIA
DATE: 26 February 2008
Amendments to the Federal Magistrates Court Rules 2001 will come into force on 1 March 2008 to delegate powers under sections 60I and 60J of the Family Law Act 1975 to Registrars to make determinations under these provisions.

Registrars will be available to determine requests for exemptions as they currently do for the Family Court of Australia, rather than by a Federal Magistrate on the first court date.
Edited

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