Before making an irreconcilable differences application to the Children's Court, a parent, person with parental responsibility or child must lodge an application for conciliation counselling with the department.
Very few irreconcilable differences applications are made.
An irreconcilable differences application can be made by a person (other than the Secretary) with parental responsibility for a child, or by the child (unless the Secretary has parental responsibility for that child) if they believe that there is a substantial and presently irreconcilable difference to such an extent that the care and control of the child is likely to be seriously disrupted.
These applications are usually made when either the child or parent believes there are substantial and irreconcilable differences or conflict between themselves which make it impossible to maintain the relationship and live together.
The central point of an application relates to parental responsibility and day-to-day care responsibilities when the parent or person with parental responsibility for the child no longer wishes to manage this, or when the child no longer wants their parent or the person with parental responsibility for them to maintain this role.
An irreconcilable differences application is a last resort. Child protection’s primary role is to help the family resolve their differences through:
- referral to Child FIRST
- referral to an appropriate mediation service
- further intervention on the basis of protective concerns.
Case practitioner tasks
- Follow procedure Receiving, registering and classifying a report. This procedure also applies when the parent, person with parental responsibility or child contacting the department is making an application for conciliation counselling.
- Consult your supervisor in all cases and ACSASS for cases involving an Aboriginal child.
- Register the application in CRIS as Intake – ‘Conciliation counselling’.
- Assess any risk issues and initiate a protective intervention report if required. The application for conciliation counselling will be managed in parallel with the investigation of the protective intervention report. Follow the procedure Receiving, registering and classifying a report if a protective intervention report is required.
- Consult your supervisor about whether conciliation counselling will be provided by child protection or another agency.
- Complete appropriate CRIS fields.
- Provide information relating to conciliation counselling and support services to all relevant parties.
- Arrange for conciliation counselling as soon as possible within the period of 21 days after the application has been lodged.
Child protection or another agency may provide conciliation counselling. The practitioner providing conciliation counselling must inform those involved that information obtained during counselling sessions can be used to formulate a report for the Children's Court.
Conciliation counselling must include conciliation with each of the parties separately, and at least one conference involving all parties.
If another agency is involved, they must provide a written report to child protection concerning the outcome of the counselling.
- Once counselling has been completed, ask the team manager to sign a certificate of conciliation counselling. Give this certificate to each party. A template for a ‘Certificate of conciliation counselling under s. 260(2)’ can be accessed in Conciliation counselling forms.
The certificate of conciliation counselling confirms that conciliation counselling has been provided. Note that:
it is a legislative requirement under s. 260(5) CYFA to provide the certificate
the certificate will be necessary if any of the parties file an application for irreconcilable differences to the Children’s Court under s. 259 CYFA. It is a requirement under s. 260(1) that a certificate of conciliation counselling, issued within the last three months, be provided to the Court by the person filing an irreconcilable differences application.
The parties may no longer wish to pursue an application for irreconcilable differences following conciliation counselling.
A certificate of conciliation counselling may be provided to a parent, person with parental responsibility or child even if a conference involving all parties did not take place when:
- that person was willing to attend a conference involving all parties but one or more parties refused to attend (s. 260(6)(a)) or
- the team manager determines that exceptional circumstances existed such that attendance at a conference involving all parties would have subjected one or more of the parties to extreme duress or emotional distress (s. 260(6)(b)).
- Follow procedure Court report request – family division if the court requests an application or a disposition report Prepare a court report when requested.
After receiving the certificate of conciliation counselling, the parent or person with parental responsibility or the child may lodge the irreconcilable differences application with the certificate of conciliation counselling with the registrar at the Children's Court.
The Court may initially adjourn the matter or make an interim accommodation order depending on the specifics of the case. In any final determination, the Court will address the issues of custody and guardianship in making a protection order.
If the child does not appear at the hearing of the application, the court may issue a search warrant to take the child into emergency care.
If the person who has the care of, or parental responsibility for the child does not appear at the hearing of the application, the Court may proceed in that person’s absence if satisfied that a true copy of the application was given or sent by post to that person at least five days before the hearing.
- Complete CRIS requirements, including records of actions, decision and rationales and outcome.
- Provide ongoing supervision and consultation.
Team manager tasks
- Sign and provide a certificate of conciliation counselling for each party after the counselling has been completed.
- Endorse key decisions including:
- registration of an application for conciliation counselling
- classification of a protective intervention report where required
- whether conciliation counselling will be provided by child protection or another agency
- recommendations in any court report.