Federal Register of Legislation - Australian Government

Primary content

SLI 2008 No. 183 Regulations as made
These Regulations provide the criteria for family dispute resolution practitioners to be accredited and also provide obligations in relation to conducting family dispute resolution work, including issuing certificates.
Administered by: Attorney-General's
Made 18 Sep 2008
Registered 23 Sep 2008
Tabled HR 24 Sep 2008
Tabled Senate 24 Sep 2008

Family Law (Family Dispute Resolution Practitioners) Regulations 20081

Select Legislative Instrument 2008 No. 183

I, QUENTIN BRYCE, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 18 September 2008

QUENTIN BRYCE

Governor‑General

By Her Excellency’s Command

ROBERT McCLELLAND


Contents

Part 1                    Preliminary

                        1     Name of Regulations                                                        3

                        2     Commencement                                                              4

                        3     Definitions                                                                       4

Part 2                    Accreditation process

                        4     Family dispute resolution practitioners (Act s 10G)             6

                        5     Criteria for accreditation relating to qualifications and competencies     6

                        6     Other criterion for accreditation                                         8

                        7     Certified postgraduate awards                                           9

                        8     Certified postgraduate units equivalent to those of the specified or compulsory units of competency of the Vocational Graduate Diploma                                   9

                        9     Application for accreditation                                            10

                       10     Information to be included in application                           10

                       11     Determination on application                                           11

Part 3                    Obligations of accredited family dispute resolution practitioners

                       12     Conditions of accreditation                                              13

                       13     Notification of information                                                13

                       14     Education, training and professional development              14

                       15     Professional standards                                                   14

                       16     Secretary may impose conditions                                    14

Part 4                    Suspension or cancellation of accreditation

                       17     Grounds for suspension or cancellation of accreditation generally        16

                       18     Grounds for immediate cancellation of accreditation          17

                       19     Notice to show cause                                                     17

                       20     Notice of suspension                                                      18

                       21     Notice of cancellation                                                     18

                       22     Automatic suspension and cancellation                           18

Part 5                    Offences

                       23     Offences                                                                       19

Part 6                    Review of decisions

                       24     Review by AAT                                                              20

Part 7                    Family Dispute Resolution Practitioners

                       25     Family dispute resolution practitioners — assessment of family dispute resolution suitability     21

                       26     Family dispute resolution practitioner certificates              22

                       27     Certificate by family dispute resolution practitioner (Act s 60I (8))         23

                       28     Information to be given to parties before family dispute resolution         23

                       29     Obligations of family dispute resolution practitioner — general 25

                       30     Obligations of family dispute resolution practitioner — avoidance of conflicts of interests            26

Part 8                    Transitional arrangements

                       31     Transitional arrangements concerning the operation of the Family Law Regulations 1984            27

Schedule 1             Certificate by family dispute resolution practitioner    28

 

 


 

Part 1                 Preliminary

  

1              Name of Regulations

                These Regulations are the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

2              Commencement

                These Regulations commence on 1 January 2009.

3              Definitions

(1)            In these Regulations:

accredited family dispute resolution practitioner means a person accredited as a family dispute resolution practitioner under Part 2.

Act means the Family Law Act 1975.

appropriate qualification means:

                (a)    a higher education award in:

                          (i)    law; or

                         (ii)    psychology or social work (however described); or

                         (iii)    conflict management, mediation or dispute resolution (however described); or

               (b)    a higher education award in a field or discipline that, in the opinion of the Secretary, is relevant to the provision of family dispute resolution services; or

                (c)    a vocational graduate diploma (however described) in a field or discipline that, in the opinion of the Secretary, is relevant to the provision of family dispute resolution services.

Australian Qualifications Framework has the meaning given in the Dictionary to the Higher Education Support Act 2003.

Note   Information on the Australian Qualifications Framework can be found on the Internet at: http://www.aqf.edu.au.

certified postgraduate award means a postgraduate degree or diploma (however described) provided by a higher education provider that has been certified by the higher education provider under regulation 7.

higher education award means:

                (a)    a degree of at least bachelor level; or

               (b)    a postgraduate award of a diploma (however described) of at least 12 months full time study or the equivalent part time study.

higher education provider has the meaning given in the Dictionary to the Higher Education Support Act 2003.

legal practitioner has the meaning given in regulation 3 of the Family Law Regulations 1984.

National Mediator Approval Standards means the Australian National Mediator Standards — Approval Standards for Mediators Seeking Approval Under the National Mediator Accreditation System (September 2007).

other Regulations means the Family Law Regulations 1984 as in force on 30 June 2009.

registered training organisation has the meaning given in subsection 3 (1) of the Skilling Australia’s Workforce Act 2005.

Secretary has the meaning given in regulation 3 of the Family Law Regulations 1984.

Vocational Graduate Diploma of Family Dispute Resolution means the vocational graduate diploma recognised under the Australian Qualifications Framework as the competency requirement for accreditation as a family dispute resolution practitioner.

         (2)   For these Regulations, the 3 specified units of competency are the following 3 units of the 6 compulsory units of competency for the award of a Vocational Graduate Diploma of Family Dispute Resolution:

                (a)    CHCDFV811A — Respond to domestic and family violence in family work;

               (b)    CHCDISP804A — Create a supportive environment for safety of vulnerable parties;

                (c)    CHCFAM505A — Operate in a family law environment.

         (3)   For these Regulations, the accreditation criteria are:

                (a)    the criterion mentioned in subregulation 5 (1), (2), (3) or (4); and

               (b)    the criterion mentioned in regulation 6.

Part 2                 Accreditation process

4              Family dispute resolution practitioners (Act s 10G)

                For paragraph (a) of the definition of family dispute resolution practitioner in subsection 10G (1) of the Act, a person is accredited as a family dispute resolution practitioner if the Secretary determines, in accordance with this Part, that the person meets the accreditation criteria.

5              Criteria for accreditation relating to qualifications and competencies

Person holding Vocational Graduate Diploma of Family Dispute Resolution

         (1)   It is an accreditation criterion for a person that the person has, or is entitled to, the award of a Vocational Graduate Diploma of Family Dispute Resolution from a registered training organisation.

Person holding certified postgraduate award

         (2)   It is an accreditation criterion for a person that the person has, or is entitled to, a certified postgraduate award.

Person holding appropriate qualifications or mediation accreditation who has been assessed as competent or completes postgraduate units

         (3)   It is an accreditation criterion for a person that the person:

                (a)    either:

                          (i)    has, or is entitled to, the award of an appropriate qualification; or

                         (ii)    has been accredited by a Recognised Mediation Accreditation Body under the National Mediator Approval Standards and remains accredited under those Standards; and

               (b)    either:

                          (i)    has been assessed as competent by a registered training organisation against the 6 compulsory units of competency for the award of a Vocational Graduate Diploma of Family Dispute Resolution; or

                         (ii)    has completed the units of a postgraduate degree or diploma certified by a higher education provider under subregulation 8 (1).

Person who is registered and assessed as competent or completes postgraduate units

         (4)   It is an accreditation criterion for a person that the person:

                (a)    is registered, until 30 June 2009, on the Family Dispute Resolution Register established under Part 4B of the other Regulations; and

               (b)    has either:

                          (i)    been assessed as competent by a registered training organisation against the 3 specified units of competency; or

                         (ii)    completed the units of a postgraduate degree or diploma certified by a higher education provider under subregulation 8 (2).

         (5)   For subparagraphs (4) (b) (i) and (ii), a registered training organisation or higher education provider may only assess a person as competent against the 3 specified units until 30 June 2011.

Note   The Register established under Part 4B of the other Regulations will not exist after 30 June 2009.

6              Other criterion for accreditation

         (1)   It is an accreditation criterion for a person that the person:

                (a)    is not prohibited under a law of a State or Territory from working with children; and

               (b)    has complied with the laws for employment of persons working with children in each of the States and Territories in which the person will provide family dispute resolution services; and

                (c)    has access to a suitable complaints mechanism to which persons who use the applicant’s services as a family dispute resolution practitioner may have recourse if they wish to complain about services provided; and

               (d)    is suitable to perform the functions and duties of a family dispute resolution practitioner; and

                (e)    is not disqualified from accreditation.

Examples of complaints mechanism for paragraph (c)

·             internal complaints mechanism established by an organisation of which the person applying for accreditation as a family dispute resolution practitioner is an affiliate or employee or on whose behalf the family dispute resolution applicant provides services

·             complaints mechanism established by a professional association of which the person applying for accreditation is a member

·             complaints procedures of statutory bodies established by the Commonwealth, a State or Territory.

         (2)   A person is disqualified from accreditation if the person has been convicted of:

                (a)    an offence involving violence to a person; or

               (b)    a sex‑related offence, including rape, sexual assault, indecent assault, unlawful sexual acts with or upon minors, child pornography, procuring or trafficking of a child for indecent purposes or being knowingly concerned with the prostitution of a child.

Note   Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

7              Certified postgraduate awards

         (1)   A higher education provider may certify that a postgraduate degree or diploma course that it provides is equivalent to a Vocational Graduate Diploma of Family Dispute Resolution from a registered training organisation if the course:

                (a)    has content equivalent to the Diploma; and

               (b)    includes workplace application requirements for students equivalent to the Diploma.

         (2)   A higher education provider that has certified a post graduate degree or diploma course under subregulation (1) must, as soon as practicable, notify the Secretary of the following circumstances if they apply:

                (a)    if the content or workplace application requirements of the degree or course are no longer equivalent to those of the Diploma;

               (b)    if it will no longer offer the degree or course.

         (3)   Any certification or notification to be given under this regulation must be given to the Secretary in writing.

8              Certified postgraduate units equivalent to those of the specified or compulsory units of competency of the Vocational Graduate Diploma

         (1)   A higher education provider may certify that units of a postgraduate degree or diploma that it provides are equivalent to the 6 compulsory units of competency for the award of Vocational Graduate Diploma of Family Dispute Resolution if the units provided:

                (a)    have content equivalent to the 6 compulsory units; and

               (b)    includes workplace application requirements for students equivalent to the 6 compulsory units.

         (2)   A higher education provider may certify that units of a postgraduate degree or diploma that it provides are equivalent to the 3 specified units of competency if the units provided:

                (a)    have content equivalent to the 3 specified units; and

               (b)    include workplace application requirements for students equivalent to the 3 specified units.

         (3)   A higher education provider that has certified units it provides under subregulation (2) or (3) must, as soon as practicable, notify the Secretary of the following circumstances if they apply:

                (a)    if the content or workplace application requirements of those units are no longer equivalent to the 3 specified units of competency;

               (b)    if it will no longer offer those units.

         (4)   Any certification or notification to be given under this regulation must be given to the Secretary in writing.

9              Application for accreditation

         (1)   A person may apply to the Secretary to be accredited as a family dispute resolution practitioner.

         (2)   The application must:

                (a)    be in writing and in a form approved by the Secretary; and

               (b)    include the information mentioned in regulation 10.

         (3)   The form may require the applicant:

                (a)    to make a statutory declaration about information, documents or other matters given by the applicant in or with the application; and

               (b)    to give consent to the Secretary to verify information, documents or other matters given by the applicant in or with the application (including information about the applicant’s criminal history).

10            Information to be included in application

         (1)   The following information must be included in an application for accreditation:

                (a)    the name and contact details of the applicant;

               (b)    a statement about how the applicant meets the accreditation criteria;

                (c)    any other matter required by the Secretary by notice given to the applicant.

         (2)   The Secretary may ask the applicant, by written notice, to give the Secretary additional information within the period specified in the notice, to assist in determining whether the applicant meets the accreditation criteria.

         (3)   If the Secretary asks the applicant to give additional information, the Secretary is not required to consider the application while waiting for the information to be given.

         (4)   If the applicant does not reply to the notice within the period specified in the notice, the application is taken to have been withdrawn.

11            Determination on application

         (1)   On receiving an application for accreditation as a family dispute resolution practitioner, the Secretary must determine that the applicant:

                (a)    meets the accreditation criteria; or

               (b)    does not meet the accreditation criteria.

         (2)   In making the determination, the Secretary:

                (a)    must have regard to:

                          (i)    the information included in the application; and

                         (ii)    evidence, documents and other matters accompanying the application; and

                         (iii)    any additional information given under subregulation 10 (2); and

               (b)    may have regard to any other relevant information.

         (3)   If the Secretary determines that the applicant meets the accreditation criteria, the Secretary must give the applicant written notice of:

                (a)    the determination; and

               (b)    the obligations of accredited family dispute resolution practitioners under Part  3.

Note   If the Secretary imposes a condition on the applicant’s accreditation under subregulation 16 (1), the Secretary must also give notice of that condition and the reasons for it — see subregulations 16 (1) and (2).

         (4)   If the Secretary determines that the applicant does not meet the accreditation criteria, the Secretary must give the applicant written notice of:

                (a)    the determination and the reasons for it; and

               (b)    the applicant’s review rights under regulation 24.

Part 3                 Obligations of accredited family dispute resolution practitioners

  

12            Conditions of accreditation

                A person who is accredited as a family dispute resolution practitioner must comply with regulations 13 to 15 and any additional conditions, or variations to conditions, imposed by the Secretary under regulation 16.

13            Notification of information

                A person who is accredited as a family dispute resolution practitioner must:

                (a)    comply with any request for information by the Secretary; and

               (b)    notify the Secretary about any change in the person’s name and contact details within 28 days after the change; and

                (c)    notify the Secretary about any matter that may affect the person’s accreditation, within 7 days after the occurrence of the event, including:

                          (i)    whether the person has been prohibited under a law of a State or Territory from working with children; and

                         (ii)    whether the person has failed to comply with a law of a State or Territory relating to employment of persons working with children; and

                         (iii)    whether the person has been charged with an offence that, if the person is convicted, will result in either of the circumstances mentioned in subparagraphs (i) and (ii) arising; and

                        (iv)    whether the person has been charged with, or convicted of, an offence mentioned in subregulation 6 (2); and

                         (v)    whether the person has ceased to provide family dispute resolution services and the reasons for doing so; and

                        (vi)    whether the person has ceased to have access to a complaints mechanism mentioned in paragraph 6 (1) (c).

14            Education, training and professional development

         (1)   A person who is accredited as a family dispute resolution practitioner must undertake at least 24 hours education, training or professional development in family dispute resolution in each 24 month period starting on the day of the person’s accreditation as a family dispute resolution practitioner.

         (2)   If the Secretary becomes aware that an accredited family dispute practitioner has failed to comply with subregulation (1), the Secretary may, by written notice, give the person a specified period within which to comply with the requirement.

15            Professional standards

                A person who is accredited as a family dispute resolution practitioner must uphold reasonable professional standards in the provision of family dispute resolution services.

16            Secretary may impose conditions

         (1)   The Secretary may, by written notice given to an accredited family dispute resolution practitioner:

                (a)    add a condition to the accreditation; or

               (b)    vary a condition of the accreditation; or

                (c)    revoke a condition of the accreditation.

         (2)   A notice under subregulation (1) must include:

                (a)    the Secretary’s reasons for adding, varying or revoking the condition; and

               (b)    the practitioner’s review rights under regulation 24.

         (3)   Failure by the Secretary to comply with subregulation (2) does not affect the validity of a condition.

Part 4                 Suspension or cancellation of accreditation

17            Grounds for suspension or cancellation of accreditation generally

         (1)   The Secretary may cancel the accreditation of an accredited family dispute resolution practitioner if the Secretary is satisfied that the practitioner:

                (a)    has failed to comply with the Act or any obligation imposed on the practitioner by the Act ; or

               (b)    fails to meet the accreditation criteria; or

                (c)    knowingly gave false or misleading information, or failed to disclose material information, in order to be accredited or in purported compliance with a condition of the practitioner’s accreditation; or

               (d)    has failed to comply with any condition of the accreditation; or

                (e)    has engaged in conduct that is likely to bring family dispute resolution into disrepute.

         (2)   The Secretary may suspend the accreditation of an accredited family dispute resolution practitioner if the Secretary is satisfied that:

                (a)    at least 1 of the grounds mentioned in paragraphs (1) (a), (b), (d) and (e) applies to the practitioner; and

               (b)    the practitioner’s failure or conduct can be remedied or mitigated by the practitioner in a reasonable time.

         (3)   The Secretary may suspend the accreditation of an accredited family dispute resolution practitioner if the Secretary is satisfied that the practitioner has been charged with:

                (a)    an offence that, if the person is convicted, will result in the person:

                          (i)    being prohibited under a law of a State or Territory from working with children; or

                         (ii)    failing to comply with a law of a State or Territory relating to employment of persons working with children; or

               (b)    an offence mentioned in subregulation 6 (2).

         (4)   If the Secretary decides to suspend the accreditation of a person under this regulation, the person is not considered to be accredited under the Accreditation Rules for the duration of the suspension.

         (5)   In this regulation:

conduct includes an omission or failure to act.

18            Grounds for immediate cancellation of accreditation

                The Secretary may immediately cancel the accreditation of an accredited family dispute resolution practitioner if the practitioner:

                (a)    is prohibited under a law of a State or Territory from working with children; or

               (b)    has been convicted of an offence the substance of which is a failure by the practitioner to comply with a law of a State or Territory relating to employment of persons working with children; or

                (c)    has been convicted of an offence mentioned in subregulation 6 (2).

Note   The Secretary is not required to undertake the show cause process set out in regulation 19 if satisfied that at least 1 of these grounds applies.

19            Notice to show cause

         (1)   Before making a decision under regulation 17 to suspend or cancel a person’s accreditation, the Secretary must:

                (a)    tell the person, in writing, of the Secretary’s opinion and the reasons for the opinion; and

               (b)    ask the person to show cause, in writing, within a specified period of at least 28 days after receipt of the notice, why the accreditation should not be suspended or cancelled.

         (2)   The Secretary must not make a decision under regulation 17 until the earlier of the following:

                (a)    when the person responds to the notice;

               (b)    the end of the period specified in the notice.

20            Notice of suspension

                If the Secretary decides to suspend a person’s accreditation, the Secretary must give the person written notice of the suspension stating:

                (a)    the reasons for, and the effect of, the suspension; and

               (b)    the date when the suspension takes effect; and

                (c)    either:

                          (i)    the date when the suspension ends; or

                         (ii)    what the person must do, or the event that must occur, to end the suspension; and

               (d)    the person’s review rights under regulation 24.

21            Notice of cancellation

                If the Secretary decides to cancel a person’s accreditation, the Secretary must give the person written notice of the cancellation stating:

                (a)    the reasons for, and the effect of, the cancellation; and

               (b)    the date when the cancellation takes effect; and

                (c)    the person’s review rights under regulation 24.

22            Automatic suspension and cancellation

         (1)   The Secretary must suspend a person’s accreditation if the person requests the Secretary, in writing, to do so, for the period, or until the happening of an event, specified by the person.

         (2)   The Secretary must cancel a person’s accreditation if:

                (a)    the person requests the Secretary, in writing, to do so; or

               (b)    the person dies.

Part 5                 Offences

23            Offences

         (1)   A person is guilty of an offence if the person fails to notify the Secretary of a change or matter in accordance with paragraph 13 (b).

Penalty:   10 penalty units.

         (2)   A person is guilty of an offence if the person fails to notify the Secretary of a change or matter in accordance with paragraph 13 (c).

Penalty:   10 penalty units.

         (3)   An offence against subregulation (1) or (2) is an offence of strict liability.

Part 6                 Review of decisions

24            Review by AAT

                An application may be made to the Administrative Appeals Tribunal for the review of the following decisions:

                (a)    a decision, under subregulation 11 (1), that a person does not meet accreditation criteria;

               (b)    a decision, under subregulation 16 (1), to add, vary or revoke a condition to an accredited family dispute resolution practitioner’s accreditation;

                (c)    a decision, under regulation 17 or 18, to suspend or cancel the accreditation of an accredited dispute resolution practitioner.

Part 7                 Family Dispute Resolution Practitioners

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.

26            Family dispute resolution practitioner certificates

         (1)   For subsection 60I (7) of the Act, an applicant may file a certificate only within 12 months after the latest family dispute resolution or attempted family dispute resolution.

         (2)   The practitioner may give a certificate under paragraph 60I (8) (aa) of the Act only after having regard to the matters mentioned in subregulation 25 (2).

         (3)   A family dispute resolution practitioner must not give a certificate under subsection 60I (8) of the Act to a person more than 12 months after the person last attended, or attempted to attend, family dispute resolution about the issue or issues that the order, for which the application was made, would deal with.

         (4)   A family dispute resolution practitioner may give a certificate under paragraph 60I (8) (a) of the Act only if the practitioner, or a person acting for the practitioner, has, at least twice, contacted each party who has failed to attend, with at least 1 contact in writing:

                (a)    giving the party a reasonable choice of days and times for attendance at family dispute resolution; and

               (b)    telling the party that, if the party does not attend family dispute resolution:

                          (i)    the practitioner may give a certificate under paragraph 60I (8) (a) of the Act; and

                         (ii)    the certificate may be taken into account by a court when determining whether to make an order under section 13C of the Act referring the parties to family dispute resolution or to award costs against a party under section 117 of the Act.

         (5)   If the family dispute resolution practitioner who is entitled to give a certificate under subsection 60I (8) of the Act becomes incapable of giving the certificate, the certificate may be given on behalf of the practitioner by an organisation for which the practitioner has provided family dispute resolution services.

Examples of incapacity

Death of the practitioner, loss of accreditation, inability to be contacted.

27            Certificate by family dispute resolution practitioner (Act s 60I (8))

         (1)   A certificate that may be given by a family dispute resolution practitioner under subsection 60I (8) of the Act must be in accordance with the form in Schedule 1.

         (2)   The validity of:

                (a)    proceedings on an application for an order under Part VII of the Act; or

               (b)    any order made in those proceedings;

is not affected by a failure to comply with subregulation (1).

28            Information to be given to parties before family dispute resolution

         (1)   Before family dispute resolution is started under subregulation 25 (3), each party to the family dispute resolution must be given the following information:

                (a)    that it is not the role of the family dispute resolution practitioner to give people legal advice (unless the family dispute resolution practitioner is also a legal practitioner);

               (b)    the family dispute resolution practitioner’s confidentiality and disclosure obligations under section 10H of the Act;

                (c)    that, provided section 10J of the Act applies, evidence of anything said, or an admission made, at family dispute resolution is not admissible:

                          (i)    in any court (whether exercising federal jurisdiction or not); or

                         (ii)    in any proceedings before a person authorised by a law of the Commonwealth or a State or Territory, or by the consent of the parties, to hear evidence;

               (d)    the qualifications of the family dispute resolution practitioner to be a family dispute resolution practitioner;

                (e)    the fees (including any hourly rate) charged by the family dispute resolution practitioner in respect of the family dispute resolution;

                (f)    that family dispute resolution must be attended if required under section 60I of the Act, before applying for an order under Part VII of the Act;

                (g)    that, if a person wants to apply to the court for an order under Part VII of the Act, the family dispute resolution practitioner may provide a certificate under subsection 60I (8) of the Act, including a certificate to the effect that the person:

                          (i)    did not attend family dispute resolution due to the refusal, or the failure, of the other party or parties to the proceedings to attend; or

                         (ii)    attended family dispute resolution with the other party or parties to the proceedings but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;

                (h)    if a certificate under subsection 60I (8) of the Act is filed, the court may take it into account in considering whether to make an order under section 13C of the Act referring the parties to family dispute resolution or to award costs against a party under section 117 of the Act;

                 (i)    information about the complaints mechanism that a person who wants to complain about the family dispute resolution services may use.

Note 1   Paragraphs (b) and (c) outline the general rule that communications during family dispute resolution are confidential and not admissible in court. However, sections 10H and 10J of the Act specify exceptions to the general rule when disclosure by a family dispute resolution practitioner is permitted.

Note 2   Sections 12G and 63DA of the Act may impose additional information‑giving obligations.

         (2)   A family dispute resolution practitioner must not start family dispute resolution until subregulation (1) is complied with.

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; and

               (d)    must not provide legal advice to any of the parties unless:

                          (i)    the family dispute resolution practitioner is also a legal practitioner; or

                         (ii)    the advice is about procedural matters; and

                (e)    must not use any information acquired from a family dispute resolution:

                          (i)    for personal gain; or

                         (ii)    to the detriment of any person.

30            Obligations of family dispute resolution practitioner — avoidance of conflicts of interests

         (1)   This regulation applies if, in relation to a person who is a party to a dispute that is the subject of family dispute resolution, or any other party to that dispute, a family dispute resolution practitioner:

                (a)    has acted previously in a professional capacity (otherwise than as a family dispute resolution practitioner, a family counsellor or an arbitrator); or

               (b)    has had a previous commercial dealing; or

                (c)    is a personal acquaintance.

         (2)   A family dispute resolution practitioner may provide family dispute resolution services to a party mentioned in subregulation (1) only if:

                (a)    each party to the family dispute resolution agrees; and

               (b)    the previous professional dealing (if any) does not relate to any issue in the dispute; and

                (c)    the previous commercial dealing or acquaintance (if any) is not of a kind that could reasonably be expected to influence the family dispute resolution practitioner in the provision of his or her family dispute resolution services.

Part 8                 Transitional arrangements

31            Transitional arrangements concerning the operation of the Family Law Regulations 1984

         (1)   If a person applied to be registered as a family dispute resolution practitioner under Part 4B of the other Regulations, but the Secretary did not make a decision on that application before 1 July 2009, the application for registration is to be determined under the other Regulations.

         (2)   A person who is registered because of an application to which subregulation (1) applies is taken to have been registered on 30 June 2009.

Note   A family dispute resolution practitioner must meet the accreditation requirements under Part 2 of these Regulations to be accredited after 30 June 2009.


Schedule 1        Certificate by family dispute resolution practitioner

(regulation 27)

Do not delete : Schedule Part Placeholder

 

Certificate by family dispute resolution practitioner ‑

 

Section 60I of the Family Law Act 1975 (Cth)

 

Dispute about matters that may be dealt with under Part VII of the Act between

 

___________________________________________________________

(parties)

 

in relation to

 

___________________________________________________________

(issues in dispute)

 

I, _______________________ (*Name of family dispute resolution practitioner)

 

state:

 

(a)    _______________________ (party or parties) did not attend family dispute resolution with me and the other party or parties to the proceedings but that person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend

 

(b)   _______________________ (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 subregulation 28 (2), that it would not be appropriate to conduct the proposed family dispute resolution

 

(c)    _______________________ (parties) attended family dispute resolution with me and all attendees made a genuine effort to resolve the issue or issues in dispute

 

(d)   _______________________ (party or parties) attended family dispute resolution with me and the other party or parties to the proceedings but _______________________ (party or parties) did not make a genuine effort to resolve the issue or issues in dispute.

 

 

(*Name of family dispute resolution practitioner)

 

(**Signature of family dispute resolution practitioner)

 

(Registration Number)

 

(Organisation, if applicable)

 

(Date of certificate)

 

Date of last attempted attendance at family dispute resolution (for (a) and (b))

 

OR

 

(Date of last attendance at family dispute resolution (for (c) and (d))

 

*The family dispute resolution practitioner has the discretion to give, or not to give, his or her surname.

**The family dispute resolution practitioner has the discretion to sign, or not to sign, the certificate.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.