Section 60I of the Family Law Act 1975 (the Act) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 provides that all persons who have a dispute about children must make a ‘genuine effort’ to resolve that dispute by family dispute resolution before they can litigate. Family dispute resolution practitioners are responsible for providing certificates to the court about whether or not a genuine effort has been made, and there are potential costs consequences of a ‘no genuine effort’ certificate.
However, genuine effort is not defined in the Act. Additionally, cases decided since these amendments came into force have also not provided any assistance. There is an urgent need for clarity on what genuine effort means so that clients and legal practitioners have a clear and consistent explanation of what is required of them in family dispute resolution. Secondly, it is important to prevent “forum shopping” between different dispute resolution services.
The Attorney-General’s Department provides some guidance by suggesting that genuine effort involves a real, honest exertion or attempt, realistically directed at resolving the issues. However, it is argued that this is too subjective a criterion. In her paper Making a ‘genuine effort’ in family dispute resolution: What does it mean? (Social Science Research Network Electronic Library) (November 2008), Hilary Astor provides a definition of ‘genuine effort’ as follows:
- attending family dispute resolution, and
- willingness to consider options put forward by the other party or the family dispute resolution practitioner, and
- willingness to consider putting forward options for the resolution of the dispute, and
- willingness to focus on the needs and interests of the children, to the best of the parties’ ability.
However, it is important to note that there are exceptions to the requirement that parties attend FDR or mediation. They include the urgency of the matter, inability to participate effectively, family violence or child abuse, and where the order sought is a consent order.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.