Family Law and Pre-action Procedures in Parenting Matters

By Lindsay Nicholson, Solicitor

The Family Law Act 1975 (Cth) requires parties who wish to resolve parental disputes concerning children to satisfy pre-action procedures prior to filing an application for parenting orders. Exceptions apply to matters involving urgency, child abuse or risk of same, family violence or risk of same, and genuinely intractable disputes.  

Pre-action procedure involves parties engaging in Family Dispute Resolution (“FDR”) in an attempt to mediate a parenting plan or a parenting order. A parenting plan is not legally enforceable but may be desirable for parents who maintain an amicable relationship in matters of parenting. A parenting plan may also be used in later court proceedings as evidence of earlier parental intentions concerning their children. Participation in FDR further allows parties to obtain the necessary section 60I Certificate required for filing with an initiating application when parenting orders are sought from a court of competent jurisdiction (the “Court”).

During FDR the parties may also agree to file a Consent Order and accompanying Application for Consent Orders (“parenting orders”). Upon parenting orders being sealed by the Court the orders are legally binding on the parties. This may be a preferable option to parties who require orders which are variously enforceable through an Application Contravention or an Application in a Case.

Our next article will discuss in more detail section 60I certificates and potential consequences of failing to participate or failing to genuinely participate in FDR pre-action procedure prior to filing an application for parenting orders with the Court.