Rastall and Ball and Ors
[2010] FMCAfam 1290
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RASTALL & BALL & ORS | [2010] FMCAfam 1290 |
| FAMILY LAW – Family law and child welfare – The Family Law Act 1975 (Cth) and related legislation – confidentiality of dispute resolution initial intake assessment. |
| Evidence Act1995, s.131 Family Law Act 1975, ss.10F, 10G, 10H, 10J, 13A, 13C, 60I, 69ZN, 69ZQ Family Law (Family Dispute Resolution Practitioners) Regulations 2008, rr.25, 29 Family Law Regulations1984 |
| Rogers v Rogers [1964] HCA 25; (1964) 114 CLR 608 Smirnov & Turova [2009] FMCAfam 1083 |
| Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 |
| Applicant: | MS RASTALL |
| Respondent: | MR BALL |
| Intervenor: | MR LANDRY |
| Third Party: | CENTACARE |
| File Number: | MLC 9294 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 21 May & 17 August 2010 |
| Date of Last Submission: | 17 August 2010 |
| Delivered at: | Ballarat |
| Delivered on: | 22 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gleeson |
| Solicitors for the Applicant: | Heinz and Partners |
| Counsel for the Respondent: | Ms Lia |
| Solicitors for the Respondent: | Sarah Lia |
| Counsel for the Intervenor: | The Intervenor appearing in person. |
| Counsel for the Third Party: | Mr Pavone of Counsel |
| Solicitors for the Third Party: | BJT Legal |
ORDERS
The matter be adjourned for further hearing.
IT IS NOTED that publication of this judgment under the pseudonym Rastall & Ball & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BALLARAT |
MLC 9294 of 2009
| MS RASTALL |
Applicant
And
| MR BALL |
Respondent
| MR LANDRY |
Intervenor
| CENTACARE |
Third Party
REASONS FOR JUDGMENT
This is an application concerning the care arrangements for two children of the applicant born in 2002 and 2007. The respondent and intervenor are the respective fathers of the children.
In February 2010 consent interim orders were negotiated by the parties. In an effort to best manage the dispute for the ultimate benefit of the children, the parties were ordered to complete a post separation parenting programme in order to increase their insight and understanding into the issues and tensions that arise in parenting cases, and to assist them in developing skills that would assist in reaching a parenting arrangement that would best meet the needs of the children. As it was clear that a parenting course alone would be unlikely to result in the resolution of the matter orders were also made for the parties to attend family dispute resolution pursuant to s.13C of the Family Law Act 1975. It was hoped that with the assistance of a family dispute resolution practitioner, and the benefits of a recently completed post separation parenting course, the parties may be able to resolve all, or at least some of their issues, rather than pursuing the difficult path of litigation. If they were unable to resolve issues, it was nonetheless hoped that the process would improve their insight into the issues and their negotiation skills.
The orders were made upon the basis of the court’s findings that family dispute resolution would be a suitable process for this family. There were no issues apparent on the material filed that indicated this was not an appropriate process. Similarly, no submissions were made indicating that this would not be an appropriate process.
On 18 May 2010, when the matter was again before me, the following exchange took place:
HIS HONOUR: Thank you. And did the parties go to family dispute resolution?
[MOTHER’S SOLICITOR]: No. My instructions are my client approached a mediator and had conversations with a mediator and was eventually dissuaded from attending because the mediator indicated to my client, if I may say this…
HIS HONOUR: Sorry, I’ve ordered them to go to family dispute resolution and it didn’t happen.
[MOTHER’S SOLICITOR]: She - what I’m saying, really, is, your Honour, she made her very best efforts to attend but was eventually dissuaded by the mediator. So she tried to comply with the court…
HIS HONOUR: So you’re saying the mediator persuaded her to breach my order?
[MOTHER’S SOLICITOR]: I’m effectively saying that she was told that she didn’t think - the mediator didn’t think it would be productive, because my client has actually filed an immediate initiating application seeking to relocate to Melbourne, so in those circumstances she was told that doing mediation was going to be non-productive and that that was as much as she was able to do as she felt.
…
HIS HONOUR: [Mr Intervenor]?
[INTERVENOR]: I was just told the same thing. I went into the mediation after [the applicant] had been there and I was just told that it was non-productive and it wasn’t necessary for us to go, so that’s all I know of it.
HIS HONOUR: Who told you that?
[INTERVENOR]: I’m not sure of the lady’s name at the minute.
HIS HONOUR: Yes.
[INTERVENOR]: It was the same one [the applicant] went to as well.
The solicitor for the mother then provided a document given to the mother by Centacare. On the face of it the document purported to be a certificate under s.60I of the Family Law Act. The certificate was initialled, but the name given was only ‘[first name omitted]’, although it included a ‘Registration Number’, [omitted]. In the body of the document it set out pro-forma clauses (a) to (e), of which only one was completed:
(b) [The mother] and [the respondent] (Party or Parties) did not attend family dispute resolution with me and the other party or parties to the proceedings because I consider, having regard to the matters mentioned in sub-regulation 25(2), that it would not be appropriate to conduct the proposed family dispute resolution.
As is apparent from a reading of s.60I of the Family Law Act, this could not be a certificate under that section. So much was later conceded when Centacare made submissions. The reference in the certificate to ‘sub-regulation 25(2)’ is not a reference to the Family Law Regulations1984 (as might be assumed from the lack of reference to the title of the regulations anywhere in the document) but to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. The relevant regulation provides:
25. [Family dispute resolution practitioners -- assessment of family dispute resolution suitability] (1) Before providing family dispute resolution under the Act, the family dispute resolution practitioner to whom a dispute is referred must be satisfied that:
(a) an assessment has been conducted of the parties to the dispute; and
(b) family dispute resolution is appropriate.
(2) In determining whether family dispute resolution is appropriate, the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:
(a) a history of family violence (if any) among the parties;
(b) the likely safety of the parties;
(c) the equality of bargaining power among the parties;
(d) the risk that a child may suffer abuse;
(e) the emotional, psychological and physical health of the parties;
(f) any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.
(3) If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is satisfied that family dispute resolution is appropriate then, subject to regulations 28 and 30, the family dispute resolution practitioner may provide family dispute resolution.
(4) If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is not satisfied that family dispute resolution is appropriate, the family dispute resolution practitioner must not provide family dispute resolution.
At the directions hearing on 18 May 2010 the parties were asked if they opposed family dispute resolution, in light of the certificate provided by Centacare. The responses, as appear in the transcript, were:
HIS HONOUR: Do any of the parties oppose going to family dispute resolution?
[MOTHER’S SOLICITOR]: I don’t - well, my client certainly doesn’t …
[RESPONDENT’S SOLICITOR]: The first named father doesn’t, your Honour.
[INTERVENOR]: I don’t either. I’m quite happy to.
The matter was then adjourned until 21 May 2010 to allow Centacare to appear and be heard. On that occasion the local manager appeared. There was some discussion highlighting the issues, in particular that there appeared to be a real question as to whether s.10H of the Family Law Act provided a privilege in circumstances where the certificate stated that the parties ‘did not attend family dispute resolution’ as a result of a decision made under reg 25 which regulation requires an assessment ‘Before providing family dispute resolution under the Act’. The matter was later adjourned to allow Centacare to obtain advice and representation if desired.
On 18 June 2010 Centacare was represented by Counsel who made submissions with respect to the operation of ss.13C, 10F, 10G, 10H and 10J of the Family Law Act 1975, together with reg.25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. However, no affidavit material was provided by Centacare at this time. Counsel was unable to locate any cases on the operation of these provisions.
An affidavit from the family dispute resolution practitioner was filed on 11 August 2010 to provide an evidentiary basis for counsel’s submissions. It appears that through administrative error at Centacare, the intervenor was not initially contacted to participate in the process. The family dispute resolution practitioner sets out that:
Both [the applicant] and [the respondent] attended at their respective Child in Focus appointments.
That as a result of the parties’ attendance at their respective Child in Focus appointments I came to the conclusion that the dispute would not be resolved by the Family Dispute Resolution process.
The family dispute resolution practitioner then sets out that she made a decision under reg.25(2)(f). The reasons for this determination are not given, the family dispute resolution practitioner stating that ‘I believe that the reasons for my decision under this sub-regulation are confidential’ (at para [17]). The family dispute resolution practitioner then goes on to say:
[18] That Centacare Ballarat spent a total of seven hours with the parties in Family Dispute Resolution.
The difficulty with defining the nature of the process that led to the determination under reg.25(2), and the strongly preferred position of the family dispute resolution practitioner that anything done with the parties be confidential, is apparent from paragraph 21 of her affidavit where she seeks to recast the events in the context of statutory provisions, saying:
[21] … the certificate was incorrectly completed and indicated that the parties did not attend Family Dispute Resolution. The parties had began (sic) the Family Dispute Resolution process, however had not attended the final face to face session. After considering the issue further, the more appropriate option was paragraph (e) [of the pro-forma s.60I certificate]: “the parties began attending family dispute resolution with me and the other party to the proceedings but I consider, having regard to the matters mentioned in sub-regulation 25(2), that it would not by appropriate to continue the family dispute resolution.”
[22] The difficulty with the certificate is that this option was not entirely correct either, as although the parties had began the family Dispute Resolution process, they did not actually attend for the face to face session with each other, and so did not attend “family dispute resolution with the other party”. Nonetheless, this was the more appropriate option and paragraph (b) was completely incorrect.
It is clear that the use of a s.60I certificate was inappropriate. However, this is a largely technical issue that does not go to the heart of the problem: that is, whether there is a two stage process required by the Family Law Act and Regulations, and if so whether evidence of what occurred at the first stage is precluded from being placed before the court as a result of s.10J of the Family Law Act.
Meaning of Family Dispute Resolution
The Family Law Act provides a definition for ‘family dispute resolution’ in s.10F:
10F [Definition of family dispute resolution] Family dispute resolution is a process (other than a judicial process):
(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and
(b) in which the practitioner is independent of all of the parties involved in the process.
Part II of the Family Law Act provides for a system of accreditation of family counsellors and family dispute resolution practitioners: see ss.10A, 10B, 10C, 10F and 10G. The Act also provides for confidentiality (ss.10D and 10H) and inadmissibility of ‘anything said’ during family counselling or family dispute resolution (ss.10E and 10J).
In this case there is no dispute that the family dispute resolution practitioner is a ‘family dispute resolution practitioner’, within the meaning of s.10G of the Act.
This definition makes clear that it is not a process that must be conducted by a justice within the meaning of Chapter III of the Constitution. The definition is carefully drawn: for example, it differentiates ‘processes that aim to resolve disputes from those that are focused on psychological health and relationship issues’, that is ‘processes concerned with personal/relationship healing’: see Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 at [130].
The Explanatory Statement for the Regulations provides much detail of the level of qualifications required by practitioners for recognition under the regulations.
Counsel for Centacare placed great weigh on the word ‘process’, citing the definition for the Shorter Oxford Dictionary that a process is:
A thing that goes on or is carried on; a continuous series of actions, events or changes; a course of action; a procedure, especially a continuous and regular action or succession of actions occurring or performed in a definite manner; a systematic series of actions or operations directed to some end.
This provided an important foundation for Centacare’s argument that the ‘family dispute resolution process’ started when a person attended for assessment as assessment is part of the ‘process’ undertaken under the Act.
Conspicuous by its absence, is evidence setting out the process adopted, guidelines or theories of practice underpinning the process, or even details of what the ‘Child in Focus appointments’ actually entailed. I note that Registrars of the court are only allocated two hours for conciliations on property issues, and that family consultants employed by the court regularly provide oral reports to the court after only seeing the parties for a morning. It is difficult, therefore, to understand what consumed 7 hours of Centacare’s time, without the parties having a joint (or at least shuttle) session, just to determine that ‘family dispute resolution’ was not appropriate in circumstances where the parties still desire such a process.
Role of Family Dispute Resolution under the Family Law Act
Part IIIB of the Family Law Act makes family dispute resolution an important object of the Act, as set out in s.13A:
13A [Objects of this Part] (1) The objects of this Part are:
…
(b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and
…
(d) to give the court the power to require parties to proceedings under this Act to make use of court or non‑court based family services appropriate to the needs of the parties.
(2) The object mentioned in paragraph (1)(b) also lies behind the general requirement in section 60I for family dispute resolution services to be used before applications for orders under Part VII are made.
There is no doubt that family dispute resolution processes are not limited to voluntary participants: see s.13A(1)(d). It is also clear that the legislature intended orders for parties to attend family dispute resolution processes under s.13C should be taken seriously. Section 13D provides specific powers for the court to make such orders as it considers appropriate if a party fails to comply with an order under s.13C, even when none of the parties make complaint, saying:
13D [Consequences of failure to comply with order under section 13C] (1) If a party fails to comply with an order of a court under section 13C, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court.
(2) On receiving the report, the court may make any further orders it considers appropriate.
(3) The court may make orders under subsection (2):
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests under an order made under section 68L.
For the provisions for compulsory attendance at such processes to have any real effect, compliance with such an order must require a genuine effort by the parties, not a merely token appearance.
Privilege and Family Dispute Resolution
The confidentiality protection in s.10H relates to ‘a communication made to the practitioner while the practitioner is conducting family dispute resolution’ (emphasis added). The prohibition on admissibility in s.10J relates to ‘anything said, or any admission made, by or in the company of … a family dispute resolution practitioner conducting family dispute resolution’ (emphasis added). The sections also provide a number of very limited exceptions which are not relevant to this matter. The words of the provisions make clear that the protections that those provisions offer the parties and family dispute resolution practitioner are only engaged when the family dispute resolution practitioner is ‘conducting family dispute resolution’.
Importantly, the almost blanket protection provided by Part II of the Family Law Act is not the only protection available to parties. To the extent that a privilege against admissibility of evidence of communications is reasonably required before or after the conduct of family dispute resolution, s.131 of the Evidence Act 1995 still provides significant protection to the parties (although not Centacare) in the style of the common law ‘without prejudice’ privilege (which is of considerable width in family law matters: see Rogers v Rogers). It is not necessary to explore the interaction of s.131 with the common law for this decision, nor the extent of the privilege provided by s.131 with respect to events before the family dispute resolution process. The additional protection provided by Part II (over that provided by s.131 of the Evidence Act 1995) is limited to the specific events described in Part II, as conducted by specifically approved persons (also described in Part II).
The provisions of Div II of the Family Law Act are in place to facilitate the effectiveness of the process by providing an enhanced ‘without prejudice’ style privilege to the parties not to protect professionals carrying out family dispute resolution work who are under the usual legal obligations to provide a service at the appropriate standard and without negligence. Whilst s.10J, in its current form, may well stymie any potential common law claims against family dispute resolution practitioners (such as claims in negligence for malpractice) it is difficult to conclude that protection of practitioners is one of the intended purposes of the provision.
Not surprisingly, in the context of this case, none of the parties argued that there is any privilege that may arise under s.131 of the Evidence Act1995, if the Family Law Act provisions did not cover the events, nor a common law style privilege such as referred to in Rogers v Rogers [1964] HCA 25; (1964) 114 CLR 608. Of course, any privilege of this type would be for the benefit of the parties, not Centacare, and for the parties to maintain or waive.
Having regard to the very restrictive provisions of Part II of the Family Law Act, and the real risk of harm that may flow from an inappropriate family dispute resolution session, it is not surprising that reg.25 requires an assessment of the parties prior to embarking upon such a process.
It was argued that reg.25 must also be the basis for ending a family dispute regulation process if it became inappropriate after it was commenced, or became futile. It was put that otherwise, a family dispute resolution process would be required to continue until a settlement was reached. This argument does not withstand careful analysis. First, implicit in the nature of the process, as with mediation, is the proposition that it ends either at settlement, or when it is apparent that it is futile to continue after a full exploration of the issues and options. As a result it does not appear to me that there needs to be a regulation defining the end to the process. Secondly, the regulations do provide for the termination of the process, once it has commenced, in reg.29:
29 [Obligations of family dispute resolution practitioner – general] In providing family dispute resolution services under the Act, a family dispute resolution practitioner:
(a) must ensure that, as far as possible, the family dispute resolution process is suited to the needs of the parties involved (for example, by ensuring the suitability of the family dispute resolution venue, the layout of the family dispute resolution room and the times at which family dispute resolution is held); and
(b) must ensure that:
(i) family dispute resolution is provided only in accordance with this Part; and
(ii) any record of the family dispute resolution is stored securely to prevent unauthorised access to it; and
(c) must terminate the family dispute resolution:
(i) if requested to do so by a party; or
(ii) if the family dispute resolution practitioner is no longer satisfied that family dispute resolution is appropriate; …
If the counsellor’s recasting of the events as being entirely ‘family dispute resolution’ (in contrast to the initial version she gave in the certificate) were correct, then she has breached reg.25 by failing to first conduct ‘an assessment’. This tells strongly in favour of accepting her first version of events, as set out in the certificate.
No evidence has been provided of the theoretical underpinnings (if any) of the practices at Centacare that applied in this case. However, it is generally accepted that privilege and confidentiality have important benefits for dispute resolution processes, particularly those provided for in family law that often contain both dispute resolution and therapeutic elements. It is also accepted that such confidentiality and privilege cannot be a blanket one. The balance generally applied is that set out in s.131 of the Evidence Act 1995, reflecting the common law as developed over the centuries.
The special processes provided for under the Family Law Act are given a greater measure of protection, counterbalanced by two important safeguards: that the persons providing the services are professionals that have the particular skills necessary for this work, and that the processes are only engaged in after ‘an assessment’. That is, to put it more colloquially, the Family Law Act ‘cone of silence’ only descends after an assessment by an approved person, and only covers the specific process then conducted by an approved person. As FM Walters said in Smirnov & Turova [2009] FMCAfam 1083, with respect to the equivalent provisions concerning family counselling:
[57] Having regard to the very serious consequences that flow from the characterisation of a process as "family counselling" – which consequences obviously include the possibility of evidence which is highly relevant to the safety or best interests of a child being excluded from consideration in legal proceedings where the court is legislatively compelled to regard the best interests of the child as the paramount consideration (and, in doing so, is also legislatively compelled to consider, among other things, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence) – it seems to me that the applicability of provisions such as ss.10D and 10E should be clearly and affirmatively demonstrated.
Whilst the course of events from the first meeting of the parties and practitioner to the end of the family dispute resolution process may be said to be part of one extended ‘process’, either in counselling theory (although there is no evidence of this) or using a broad definition of ‘process’ from the dictionary, clearly the Act contemplates an assessment and then the family dispute resolution process. This is also borne out by the Explanatory Statement to the regulations which provides, inter alia:
Subregulation 25(1) provides that before a practitioner provides family dispute resolution they must be satisfied that an assessment has been conducted of the parties to the dispute and that family dispute resolution is appropriate.
When assessing if a matter is appropriate … a family dispute resolution practitioner must have regard to the matters mentioned in subregulation 25(2). Subregulation 25(2) provides that the practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:
– a history of family violence (if any) between the parties;
– the likely safety of the parties;
– the equality of bargaining power among the parties;
– the risk that a child may suffer abuse;
– the emotional, psychological and physical health of the parties; and
– any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.
The re-casting of the counsellor’s views, departing from her initial certificate, appears to be driven by the argument put prior to the affidavit that the ‘intake process’ is part of the ‘family dispute resolution process.’ In this case the purpose of the argument is to allow Centacare to take advantage of the provisions of the Family Law Act and preclude evidence of almost everything that occurred at Centacare from being received by the court. The result would be that there is no explanation before the court of why a process ordered by the court, and still desired by the parties, was not carried out by Centacare.
Relevance to Principles of Case Management
The policy of the Family Law Act in limiting the additional privilege and inadmissibility provisions to the family dispute resolution (and not extending it to the assessment) is also in keeping with the requirements upon the courts when managing family law children’s cases. Division 12A of Part VII of the Family Law Act is a significant Division, differentiating children’s proceedings form most other legal process. Importantly, s.69ZN places significant obligations on the court to actively manage the proceedings ‘in a way that will promote cooperative and child-focused parenting by the parties’ toward the best interests of the child. The section provides:
69ZN [Principles for conducting child-related proceedings]
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Further relevant duties are imposed upon the court be s.69ZQ which include:
69ZQ [General duties] (1) In giving effect to the principles in section 69ZN, the court must:
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
…
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
…
(f) if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
…
The provisions clearly contemplate the court taking a very active role in managing the litigation. In the adversarial system, this relies upon the evidence provided by the parties. Section 69ZN(4) requires active consideration of counselling and family dispute resolution in parenting cases.
In the present case there has been a judicial determination that family dispute resolution is appropriate, based upon the evidence before the court. If the decision by Centacare was made for a proper reason under reg.25(2), then the case must have a very different complexion to that presented to the judicial officer. In cases where an assessment is made that family dispute resolution is not appropriate (under reg.25) the assessment would usually be based upon facts and circumstances crucial to the proper management of the proceedings as they would place such a different complexion on the proceedings from the material before the court as to show that the order was inappropriate.
If, as was suggested by the solicitor for the mother, the real reason for not carrying out the family dispute resolution, as ordered by the court, was that ‘the mediator didn’t think it would be productive’ then the family dispute resolution practitioner is arguably usurping the authority of the court, which may amount to a contempt. It is within the experience of all who have practiced in family law that cases which appear without hope of settling, do regularly settle. If the parties or a family dispute resolution practitioner were able to refuse to participate in or conduct family dispute resolution simply because they did not think it would be productive, then the provisions of the Act providing for compulsory participation are rendered impotent. In this respect reg.25 is a ‘safety valve’ provision, not an opportunity for the family dispute resolution practitioner to veto orders of the court. The Explanatory Statement also recognizes the fact that family dispute resolution may not be a single event, saying:
Part VII of the Act deals with matters which, unlike property or other traditional legal matters, are not usually suited to a one time only resolution. Rather, because they concern children whose needs and desires change as they grow, matters dealt with under Part VII usually need to be renegotiated over time.
In addition, owing to the emotional nature of family law matters, particularly those concerning children, the ability of parents to negotiate with each other, or participate constructively in family dispute resolution, will vary over time. In order to maximise the opportunities for parents to make arrangements for their children, one attempt at family dispute resolution should not allow people to make an application to the court at any stage in the future, regardless of the length of time that has elapsed since the family dispute resolution. There is a need to recognise that the issues in dispute, and/or the attitudes of the parties, will usually change over time, in a manner that may warrant another attempt at family dispute resolution.
Conclusion
In the circumstances of this case I find that ‘family dispute resolution’ as defined in Part II of the Family Law Act had not commenced, as outlined in the certificate issued by the family dispute resolution practitioner on 22 April 2010. As a result, evidence of the assessment is not confidential under s.10H, nor inadmissible under s.10J. However, the parties are entitled to review the evidence of the practitioner in order to determine if any objections will be made by them based upon other statutory provisions or the common law.
I will make orders accordingly after hearing from the parties on the appropriate terms for such orders and as to any further directions that are then needed for the proper management of the proceeding.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 22 November 2010
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