A request for exemption from filing a Family Dispute Resolution (FDR) certificate is subject to the assessment of the Family Court Registrar. An affidavit can be executed stating the grounds upon which the client bases his request for exemption, otherwise, the client can fill up a pro forma Affidavit – Non-filing of Family Dispute Resolution Certificate.
A cover letter must be attached which contains an explanation why a request for exemption from the FDR certificate is requested.
Parties are required to consider all options of dispute resolution that are available to them, including alternatives to court proceedings. That the parties have considered the options must be stated in the application for exemption of FDR certificate. However, there is no need to make such a statement if the court is persuaded that there is a risk of family violence or child abuse.
The following cases are examples where request for exemption of FDR certificate was granted:
In this case, a father applied for parenting orders but was denied for failure in complying with Section 60I(7) of the Family Law Act 1975. In an ex parte hearing, the father applied to dispense with the requirement of FDR certificate. The background of the case is that the family previously lived in New Zealand which is where the parents separated.
The father, a professional athlete, transferred to Townsville while the mother and the children returned to Melbourne. Evidence was presented showing that the parties attempted to resolve the dispute but failed. The trial judge ruled that a FDR certificate can be dispensed with due to the urgency of the situation. The children had spent very little time with the children due to the distance and the parents were unable to settle through dispute resolution because they were physically remote from each other.
In this case, the mother failed to return the children from South Africa. The court in South Africa ruled that Australia has the jurisdiction with parenting disputes. The decision of the South African court is that the father should apply to an Australian court for orders so that the South African court can order the mother to return to Australia. Due to the urgency of the circumstances, Cronin J ordered that the requirement for the FDR certificate be dispensed with.