Irreconcilable differences - advice
This advice provides information regarding irreconcilable differences applications, including applications for conciliation counselling (mediation).
Document ID number 2009, version 2, 1 March 2016.
See procedure Irreconcilable differences for tasks that must be undertaken.
Under s. 259 of the CYFA, an irreconcilable differences application can be made as follows:
- A person who has parental responsibility for a child and who believes there is a substantial and presently irreconcilable difference between himself or herself and the child to such an extent that the care and control of the child are likely to be seriously disrupted may, subject to s. 260 of the CYFA, apply to the court for a finding that such a difference exists.
- A child who believes that there is a substantial and presently irreconcilable difference between them and the person who has parental responsibility for them to such an extent that the care and control of them are likely to be seriously disrupted may, subject to s. 260, CYFA, apply to the court for a finding that such a difference exists.
Section 260 of the CYFA requires that the person making the irreconcilable differences application must have lodged an application with the Secretary for conciliation counselling and produce a certificate of conciliation counselling issued by the Secretary in the last three months, and sets out the procedure to be followed by child protection when such an application is received.
A child subject to a family reunification order, a care by Secretary order or a long-term care order cannot make an irreconcilable differences application.
Very few irreconcilable differences applications are made.
The central point of an application relates to parental responsibility for care and control of a child. It is available when the person who has parental responsibility (usually a parent) no longer wishes to have that responsibility for care and control of the child, or when the child no longer wants the person who has parental responsibility for them (usually a parent) to have care and control of them.
Application for conciliation counselling
A parent or child may contact the Children's Court and state they wish to make an irreconcilable difference application to the court. Before the parent or child is able to lodge an application in the Children's Court, they must lodge an application for conciliation counselling with the Secretary of the Department of Health and Human Services.
An application for conciliation counselling is an intake type and the requirements for child protection upon receiving an application are to:
- manage the legislative requirements to provide access to conciliation counselling in accordance to s. 260, CYFA; and
- assess whether the child may be in need of protection given the application, and initiate a protective intervention report if required.
In response to an application for conciliation counselling, the primary role of the practitioner is to assist the family to resolve their conflict or differences through:
- a referral to Child FIRST
- a referral to an appropriate mediation service, or
- further intervention on the basis of the protective concerns.
An issue leading to a child or parent wishing to make an irreconcilable differences application is likely to be better addressed in another way.
Accommodation of a child during conciliation counselling
If the child is unable to live with their parent or the person who has parental responsibility during this process, then a voluntary arrangement, mutually acceptable to both, can be made regarding where the child will live.
Irreconcilable differences application
If, following the conciliation counselling process, an irreconcilable differences application is made by the parent or child, the court will likely request a report from the department.
Where a placement is required, a voluntary arrangement is preferable. If the conflict or differences are at such a level that an agreement cannot be reached or, if there are concerns the current conflict between the parties may lead to the breakdown of a voluntary placement, an IAO should be sought.