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Family Law

Family Dispute Resolution Conference: What is meant by “genuine effort” in family law?

By October 31, 2017November 9th, 2017No Comments

By Gianna Huesch

In family law disputes involving children, parties can’t start legal proceedings in the family courts without first attempting to resolve their dispute through a family dispute resolution conference, which is similar to mediation.  This is a requirement under section 60I of the Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

The law requires that parties attend an accredited family dispute resolution practitioner, who will then use their professional judgment to assess whether a “genuine effort” was made by the parties to resolve the dispute. The practitioner will then provide a section 60I certificate which either confirms that a “genuine effort” was made to resolve the dispute, or on the other hand, that “no genuine effort” was made.

If it’s assessed that a genuine effort was not made, and a “no genuine effort” certificate is issued, the party judged not to have made a genuine effort may become liable for costs in future legal proceedings, reflecting the importance of making a genuine effort.

It is, however, recognised by the courts that it is not always possible for a party to attend family dispute resolution services, sometimes due to family violence or child abuse issues, or because matters are urgent, or because the parties can’t participate effectively due to their health or their physical distance from a family dispute resolution practitioner.  In certain cases therefore it’s possible to apply for an exemption to the requirement to attend family dispute resolution or mediation.

Surprisingly, there is no actual definition of “genuine effort” contained in the Family Law Act, leading to concerns over a lack of clarify and there being too much subjectivity.  The problem for parents is that they may be unclear as to what exactly is expected of them in terms of making a “genuine effort”.

The guidance from the Attorney-General’s office states that “a genuine effort involves a real, honest exertion or attempt.  It must be more than a superficial or token effort, or one that is false, or is pretence.  The effort should be one that is realistically directed at resolving the issues that are the subject of the application to a court”.  However, critics have noted that terms like “real” and “honest” are also inherently vague and vulnerable to subjectivity.

Legal scholar Hilary Astor has tried to construct a more practical definition based on parties’ clear behaviours rather than their state of mind, such that “genuine effort” could be regarded as (a) attending on a family dispute resolution service, (b) showing willingness to consider options suggested by the other party/family dispute resolution practitioner, (c) demonstrating willingness to put forward reasonable options for dispute resolution to the other party, and (d) demonstrating willingness to focus on the children’s needs and interests as best the parties can.

It’s worth noting that the Attorney-General’s guidance specifies that “if people are unhappy with the section 60I certificate issued, they can choose to attend further FDR with a different practitioner”.

The family court’s information sheet on the subject is located here:

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/getting-ready-for-court/compulsory-family-dispute-resolution-court-procedures-and-requirements

You can view the Attorney-General’s guidance on section 60I certificates here:

https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Documents/Fact%20sheet%20s60I%20certificates.pdf

For a discussion of “genuine effort”, you might also like to read this piece by the above-mentioned Hilary Astor, a professor of dispute resolution:

https://aifs.gov.au/cfca/publications/family-relationships-quarterly-no-16/genuine-effort-family-dispute-resolution

Do you need assistance with a family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice for your circumstances, please contact Alliance.

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