What steps must I take before starting family court proceedings to obtain parenting orders?

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What steps must I take before starting family court  proceedings to obtain parenting orders?

In this blog, we look at the situation for Richard who has recently separated from Charlotte. They have three children together, aged 11, 8 and 5.  Whilst Richard was actively involved in their care prior to separation, more recently Charlotte had been unwilling for the children to spend any time with him.

Richard has made a few attempts to negotiate parenting arrangements with Charlotte but no agreement has been reached.

Generally: Pre-action procedure

Before starting a case seeking parenting orders, Richard must comply with the required pre-action procedures which are set out in Part 2 of Schedule 1 of the Family Law Rules  2004  (see Rule 1.05 FLR).

Section 60I certificate

As a result of  Section 60I of the Family Law Act 1975 (Cth) (“FLA”), unless one of exceptions specified in that section apply, Richard will have to obtain a certificate pursuant to s. 60I (8) FLA before the Family Court of Australia or the Federal Circuit Court of Australia will hear any application he may make seeking parenting orders under Part VII of FLA.

Richard must first attempt family dispute resolution even if for certain reasons no actual meeting is held, for example, if Charlotte refuses to attend or in the event that the family dispute resolution practitioner determined having regard to the matters prescribed by the regulations that it would not be appropriate to conduct the proposed family dispute resolution.

The Court may accept that it is not possible or appropriate for Richard to follow the pre-action procedures if certain circumstances were to apply. In that case, he would not need to do so including that he would not need to obtain a section 60I certificate.  Those circumstances where he would not need to follow the pre-action procedures include:

  • If circumstances of urgency rose (for example, if Charlotte threatened to relocate the children interstate or overseas); and
  • If there was a genuinely intractable dispute with Charlotte (for example, if she was refusing to negotiate).

Where agreement is reached: Parenting Plan or Consent Orders

If an agreement is reached whether at family dispute resolution meeting, mediation or otherwise, Richard and Charlotte may enter into a Parenting Plan or apply to Court (by application made through the Registry of the Family Court of Australia) seeking consent orders.

Where no agreement is reached:

Notice of Claim

Before Richard initiates any court proceeding, he must give Charlotte a notice of claim being written notice of his intention to commence proceedings, setting out:

  • The issues in dispute;
  • The orders that he will seek if he commences proceedings;
  • A genuine offer to resolve issues;
  • A nominated time which must be at least 14 days after the date of the letter within which Charlotte is to provide her reply.

Reply to the Notice of Claim

Charlotte must then reply to the Notice of Claim within the nominated time advising whether Richard’s offer is accepted. Where agreement is reached, that agreement may then be documented by way of a parenting plan or a Consent order.

If Charlotte does not accept Richard’s offer, she must respond to the Notice of Claim and providing certain things including providing a genuine counter offer to resolve the issues and nominating a time (which must not be less than 14 days) within which Richard must reply.

If Charlotte does not respond, Richard has no further obligation to follow the pre-action procedures.

Richard should consider any counter offer and make reasonable endeavours to reach agreement. However, if no agreement is reached after reasonable attempts are made to resolve issues in dispute, Richard may initiate proceedings seeking parenting orders.

If you need assistance with parenting arrangements for your children, contact our family lawyers Brisbane or family lawyer northside. We are ready to assist you with all of your family law needs.