Section 60I certificates are documents signed by registered family dispute resolution practitioners.
Obtaining a certificate is an important part of the pre-action procedure for applicants in parenting cases.
They are used to prove that the divorced couple has attended sessions of family dispute resolution.
Family dispute resolution is a process that aims to help couples come to an agreement without going to court.
There are different types of family dispute resolution. For example, mediation and facilitation are both types of family dispute resolution.
These processes are less formal than going to court and are generally much less draining, both financially and emotionally, on the people involved.
Once the certificate has been filled in and signed by the family dispute resolution practitioner, it can be presented to the court in an application for orders.
Family dispute resolution practitioners are registered with the Attorney-General’s Department.
Couples require a section 60I certificate when they file an application to go to court to seek orders in relation to a child.
Parenting orders are the most common type of application to the court.
Even if someone is seeking to change parenting orders that already exist, a section 60I certificate is still required.
Needing a certificate means couples are also required to attend family dispute resolution.
This is compulsory in the family law system to encourage couples to reach decisions together in a cooperative fashion and create the solution to their parenting issues among themselves.
The process of family dispute resolution involves:
A section 60I certificate shows that the parties could not reach an agreement through family dispute resolution.
Section 60I is a section of the Family Law Act 1975.
It is in Part VII of the Act, which is the part that covers the different types of orders that can be sought in relation to children.
Parenting orders might be about who the child lives with, who they spend time with, who they communicate with or the allocation of parental responsibility.
Section 60I of the Act is specifically about attending family dispute resolution before applying for a parenting order, also called a Part VII order.
The purpose of this is to ensure the parties involved make a genuine effort to resolve their dispute before making an application to the court.
The Act states that a court cannot hear an application for a Part VII order in relation to a child unless the applicant files a certificate from a registered family dispute resolution practitioner.
If both parties have agreed on how to resolve their parenting dispute and are now making consent orders, a section 60I certificate is not necessary.
Subsection 8 of section 60I explains the different kinds of certificates a practitioner can issue.
Couples only obtain these certificates at the end of a period of family dispute resolution when this method of dispute resolution has not worked.
The final option, therefore, is going to court.
Many people do make agreements during the family dispute resolution process and do not need to obtain a section 60Icertificate to file a court application.
This is because section 60I certificates are to show that no result has come from family dispute resolution and the ex-partners cannot make a decision together in this manner.
A section 60I certificate requires the practitioner to select the circumstances that best describe the situation in question.
There are five different types of family dispute resolution certificates, each giving a different outcome as specified in the Act:
The family dispute resolution practitioner is responsible for determining whether a person has made a genuine effort to come to an agreement.
This often depends on the individual circumstances, but the practitioner may take into account each party’s willingness to take part in discussions and to make compromises.
If two people do not manage to reach an agreement that does not necessarily mean that they did not make a genuine effort.
Outcomes 2 and 5 refer to circumstances in which family dispute resolution is not appropriate.
The practitioner may deem family dispute resolution inappropriate in cases of a risk or occurrence of child abuse, a history of family violence or the emotional, psychological and physical health of the parties.
Family dispute resolution is compulsory under the law, however, some exceptions can be made.
There are several sets of circumstances that count as exceptions to the otherwise required provision of a section 60I certificate.
One of the most significant exceptions is in cases involving domestic violence.
This is one instance in which a family dispute resolution practitioner would determine it inappropriate to begin or to continue family dispute resolution sessions.
If the court determines that there has been child abuse or family violence by a party, or that there is a risk of child abuse or family violence by a party should the court application be delayed, the application will be exempt from the requirement to obtain a certificate.
Other exceptions include if the matter is urgent or if one party is unable to participate effectively in family dispute resolution.
A person may be unable to participate effectively due to, for example, illness or another incapacity to do so or geographical remoteness from the registered practitioner.
Therefore, it would be impractical to attend family dispute resolution.
The final main types of exceptions are where a person is applying for procedural orders, interim orders or consent orders and where one party has shown serious disregard for a court order made in the last twelve months.
The judge is the person who determines what qualifies as an “urgent” matter or “serious disregard.”
It is up to the judge, not the family dispute resolution practitioner, to decide whether one of the exceptions applies.
If the practitioner believes it is not appropriate to continue, they can provide the certificate showing that outcome.
However, if the court does not accept that an exception applies, they may make an order to attend family dispute resolution.
To apply for an exemption for any of the reasons above, the applicant must file an affidavit with their application to the court.
An affidavit is a written statement that the applicant swears to be true.
It is witnessed and signed by an authorised person such as a Justice of the Peace, a solicitor or a barrister.
In the affidavit, the applicant writes out their personal details and their knowledge and understanding of the circumstances that allow them an exception from providing a section 60I certificate.
The affidavit is therefore filed in place of the certificate and allows the court to accept the application so that the process can go ahead.