Importance of ‘genuine effort’ in family dispute resolution

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Importance of ‘genuine effort’ in family dispute resolution mediation

A Section 60I certificate is issued in compliance with Section 60I of the Family Law Act 1975 (Cth), as amended, and requires all persons who have a dispute about children to make a ‘genuine effort’ to resolve the dispute by family dispute resolution before they can file a case in court. This requirement is not applicable in case of urgency, family violence, child abuse and consent orders.

What is required is a certificate stating that there was genuine effort to settle the dispute. However, there are instances when a ‘no genuine effort’ certificate is issued, such as when it is apparent that a party is not willing to compromise. In the case of no genuine effort, the party responsible may be held liable for costs of the subsequent legal proceedings. It now becomes relevant to determine the meaning of ‘genuine effort’, as opposed to a sham or fake effort.

The definition of genuine effort may be subjective because it is difficult to determine the state of mind of a person in a dispute. However, circumstantial evidence of genuine effort may be shown by the concurrence of the following
a) attendance to the family dispute resolution;
b) willingness to put forward options for the consideration of the other party;
c) willingness to consider the options given by the other party; and
d) willingness to prioritise the best interest of the children (Astor, 2008).

Mere attendance to the family dispute resolution is not enough. There must be a showing that the parties are willing to reach a settlement for the best interest of the child/ren. However, the law does not require that every family mediation must result in a compromise. As long as there has been ‘genuine effort’, then the requirement of the law has been complied with.

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