a family law court will not usually make a parenting order until mediation is completed, but it will make an exception in cases of domestic violence
the dispute resolution rule
When parents in Australia cannot agree about how to raise their children, they are required to participate in dispute resolution before asking a Family Law Court to intervene. An exception to that rule exists when there is a risk of family violence.
Disputes about parenting usually involve questions of where the children will live, how much time they will spend with the other parent, and how decisions will be made about the children’s health, religion, and education. It is always better for the children if parents can discuss these issues in a reasonable way and arrive at answers that both parents believe to be fair.
When parents cannot reach an agreement on their own, they are usually required to use a process of family dispute resolution (FDR) before asking a Family Law Court to decide the dispute by entering a parenting order. The FDR process uses a mediator who helps the parents negotiate with each other. The mediator does not take sides but does have a good understanding of how the court would resolve the dispute. Sharing that knowledge can help the parties bridge their differences.
Under most circumstances, the parent who applies for a parenting order must supply a certificate showing that the FDR process failed to resolve the dispute despite the good faith efforts of the parents. The certificate must be issued by an accredited FDR practitioner.
Under certain circumstances, a Family Law Court will consider an application for a parenting order that is not accompanied by a certificate from an FDR practitioner. Family violence is one such circumstance. The court does not want to make parents engage in a process of dispute resolution if it would place a parent or a child at risk.
To qualify for the exemption, the court must agree that there are reasonable grounds to believe that:
- one parent has committed child abuse or has engaged in violent behavior with the other parent or another family member, or
- there is a risk that a parent will engage in family violence or child abuse
- Even if you are excused from participating in FDR, you will be required to contact an FDR practitioner to obtain information about how to cope with family violence.
If you believe you should be exempt from the FDR requirement because of family violence, you must file an affidavit with the court. A form for the affidavit and instructions for completing it can be obtained from the Family Court or Federal Circuit Court in which you plan to file your application.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.