NSW Family Law Act 60I Certificate and Court Orders

[Maryanne]

My ex and I have gone to mediation and the mediators gave us a 60I certificate as they said it would not be appropriate, there has been violence exposed to the children which I have made reports to community services and my son has seen the school counsellor.

I have not let them go back to him which has been a few weeks as I am concerned for their safety. There used to be an AVO in place. How quickly can I get court orders.

I was not eligible for legal aid and have to get a private solicitor which I am in the process of getting a loan to start proceedings. With the violent history is there any way we can speed this up?

 

[Tracy B]

Hi Maryanne,

To clarity, do you mean a custody court order whereby your children stays with you full-time or some other arrangement that is safe for your children?

First, which type of 60I certificate were you issued? There are five types. Was it "the parties did not attend because practitioner did not consider it appropriate to continue"?

Second, having a certificate would allow you to initiate court proceedings. Once you initiate proceedings, the court will hold an interim hearing within 1-2 months of the application where you make submissions and the court makes a temporary parenting order for the duration of the hearing. In your situation, where you believe your children are at risk, you can apply to court for an urgent order (which moves the date of hearing earlier) or seek an urgent one-party hearing with the court for another AVO order or some other parenting arrangement in the meantime.

These resources may further assist you:

• Initiating Application Kit from the Family Law Courts website
• Applying for parenting orders from the Federal Circuit Court of Australia
• Family Law Rules 2004 rule 5.12 (for applying to court for an urgent interim order without notice to the other party, meaning a one-side hearing)

 

[Maryanne]

I have been to mediation & the mediators have a 60i cert. there was violence between my ex and his partner the children were exposed too so I have not returned the children to there weekends with him cause I have safety concerns have reported incident to community services & my son is attending councelling as there was domestic violence & an Avo when we were together this is a major concern for me & I don't want to return the children until it is safe. I am applyingfor a loan as my legal aid application i earn too much. Is there anything I can do in the interim he is unpredictable what are my legal rights with children being exposed to this violence & me keeping them safe as this is not the first time that I have reported behaviour.

 

[Maryanne]

Thanks for your reply. The certificate issued was the practitioner did not think it was appropriate. Coming up with money is difficult I will have to get a lone is there another way to get orders quicker I am worried he might try & take them & concerned for their safety and mental anguish from this.

 

[AllForHer]

You're unlikely to get orders of no contact between children and father. Where there are incidents of violence, the court will take as many measures as it can to address the violence long before it will sever contact between the children and their dad. This could be anything from an anger management course, to attending on a psychologist, to ordering supervised contact. Just be prepared that there is a spectrum of options that court will first consider because it's first obligation is to the rights of the kids, which is to know, spend time and communicate with both parents on a regular basis.

Your best bet is to apply for interim orders when you apply for final orders, which will put something in place - perhaps supervised time with the kids at a contact centre - until final orders can be established. Court is a slow process, you're looking at anywhere between a year to three years to get final orders, but interim orders will be handed down usually in first mention, which is usually about six weeks after you file your application.

 

[AllForHer]

I would also like to add that the suspension of time between parent and child has often worked against parents in the past, because the court sees it as not encouraging or supporting the kids time with the other parent, and refusing to consider alternatives that mean the kids can see the other parent. If the behaviour is directed at you, for example, it's probably best that you're not present when the kids spend time with him, but if you feel unsafe leaving the kids alone with him, then rather than have yourself supervise, have his mother or father or other relative supervise, or organise time with the kids at a contact centre.

 

[Maryanne]

I have always encouraged a relationship with the kids however the violence happened between his partner & him the children were scared this is not isolated as there was an AVO which expired early this year with us that's why I left. After the violence exposed to the children my sons behaviours have been hard to deal with I have put my son into councelling as his behaviour was badly effected which was reported to community services. I do not feel safe leaving a 7 & 5 year old with him alone at the moment until we get orders. I in the past have let him have weekends but the violence is effecting them. I have encouraged a relationship until there safety is compromised.

 

[Tracy B]

Hi Maryanne,

There is no "fast track" method of obtaining an order except for the ones AllForHer and I have mentioned.

I recommend you carefully read AllForHer's comment. As for what you can do in the meantime:

• Apply for an extension/another AVO
• Apply for an interim order
• Think about allowing the father to see his children with you (or a specialist/third party) present

There are many options available apart from removing the children from their father's life completely.

 

[AllForHer]

I understand where you are coming from, but from a legal perspective, I can see a lot of components of your case that may prove challenging.

The first is that you've based the suspension of time on one incident and an expired AVO. Was the father ever convicted of breaching the AVO?

The court knows couples fight, and parents who are still together and fight in front of the kids aren't about to lose their kids to DHS just because they argue. It's unfortunate, but also an unavoidable reality, and the only difference is that he fights with his current partner in front of the kids, instead of with you in front of the kids. It's not ideal, of course, but unless there is evidence that the kids are at direct risk of harm, the court won't agree with suspending their time with their dad. Doing so is ordinarily perceived as just as destructive as exposure to conflict.

The second challenge is that, insofar as I can see, you have not witnessed the violence between your ex and his partner for yourself, so you have no genuine way of knowing if the kids genuinely were in harm's way. You've instead made that assertion based on comments from minors far too young to give credible evidence in court.

The third challenge is the assumption that your son's behaviour is a direct result of seeing his father fight with his current partner. Unless you have expert evidence that can be tested under oath and cross-examination and still support that assertion, it is unlikely to hold up in court.

The fourth issue you might face is encouraging the father to have a relationship with the kids. That's the wrong way around, in terms of legal matters. It's encouraging the kids to have a relationship with their father that's important, and I say this because parents are in very swiftly growing numbers losing residency of their children because there seems to be some confusion about what 'supporting the relationship' actually means.

I am sorry if this seems somewhat blunt. I'm merely trying to give you an idea of what kind of challenge you may face in a court hearing. Court is blunt, and they are very frequently harsh with parents who unilaterally suspend time between parent and child. The court depends only on facts and evidence, tried and tested under cross-examination, to make its rulings, and without evidence that the children were directly in harm's way, you may be facing an uphill battle.

If nothing else, I hope you interpret my commentary as insight about what the other party may pitch in their argument.