In the case of Ellwood & Ravenhill (not their real names), decided in the Family Court in 2019, the Court heard an Appeal by a mother against Orders made on a father’s Application relating to the parties’ 17 year old daughter and son who was nearly 16.

The father had applied to have the existing, informal parenting arrangements between he and the mother, by which each party spent equal time with the daughter, but the son spent no time with the mother because of conflict between them, made into a formal Court Order.  The mother, in her Response, applied for dismissal of the father’s Application on the grounds that the Section of the Family Law Act (Section 60I) in relation to Mediation taking place before Court proceedings are issued in parenting cases, had not been complied with.

The father’s case was that the parties had tried Mediation but had failed.  The mother disputed that.  When the case was first heard by a Judge of the Federal Circuit Court, that Judge directed that the parties attend a Family Consultant under Section 11F of the Family Law Act.  That Section provides for the parties and, if applicable, the children, to see a Family Consultant who is a psychologist or similar professional employed by the Court, for a relatively brief session, after which the Family Consultant provides an interim report to the Court on the parenting issues.  The mother appealed against the Federal Circuit Court Judge’s Order that the parties attend with a Family Consultant.

The Appeal Judge set aside the first Judge’s Order about the parties attending a Family Consultant and dismissed the father’s Parenting Application.  The Appeal Judge made it clear that Section 60I of the Family Law Act required that the parties make a "genuine effort" to resolve their parenting dispute with the assistance of a Family Dispute Resolution practitioner before an Application is made to the Court for Parenting Orders.  There are exceptions to that rule, including if one of the party’s has obtained an Intervention Order against the other and in cases of urgency. However, neither of those applied in this case.

The Appeal Judge found that the first Judge was in error in proceeding to hear the father’s Parenting Application, notwithstanding the fact that the parties had not attended Mediation, as was required by the Family Law Act.

Although that case was decided on somewhat unusual facts, it emphasises that, unless there is an Intervention Order or the matter is urgent, the parties must make, in the Appeal Judge’s words “a genuine effort to resolve (the) dispute with the assistance of a Family Dispute Resolution practitioner before Application is made to the Court”.  That raises the question of whether one party refusing to attend Mediation is sufficient for the Mediation Service to issue a Certificate under the Family Law Act to allow the parties to go to Court.  Refusing to attend Mediation can hardly be said to constitute a “genuine effort”.