Disclaimer: This article provides general information only and is not a substitute for legal advice about your circumstances. Family law matters can vary depending on the facts of each case, so you should seek independent legal advice before making decisions about your rights or legal options.
When family relationships break down, it is natural to want a clear path towards resolving disputes. Many people assume the next step is to go straight to court. However, Australia’s family law system generally encourages parents to resolve parenting disagreements outside the courtroom where appropriate.
This raises an important question: is mediation compulsory in family law cases?
For most applications seeking parenting orders, parents must make a genuine effort to participate in Family Dispute Resolution (FDR) before filing in court, unless an exemption applies. FDR is a specialised form of mediation that gives separated or separating parents an opportunity to discuss parenting issues and work towards their own arrangements.
Understanding when FDR is required, when an exemption may apply and what happens if the process does not resolve the dispute can help you understand your options before going to court.
Is Mediation Required for Parenting Matters?
The law generally requires parents to attempt FDR before filing for parenting orders, subject to recognised exemptions. This does not mean that every parent must complete a joint mediation session or agree to a proposed arrangement. The obligation generally requires parents to genuinely engage with the FDR process where it is appropriate and safe to do so.
FDR is facilitated by an appropriately accredited Family Dispute Resolution Practitioner. The practitioner helps parents discuss issues, identify areas of agreement and explore practical arrangements but does not make decisions for them.
After FDR, several outcomes are possible:
- Parents reach a full agreement.
- Parents reach agreement on some issues but not others.
- No agreement is reached.
- The practitioner determines that FDR is inappropriate or unsuitable to continue.
- A party does not attend or does not make a genuine effort to resolve the dispute.
Where FDR is required and no exemption applies, the applicant will generally need a Section 60I Certificate when filing an application for parenting orders.
What Is Mediation in Family Law?
Family Dispute Resolution is a specialised form of mediation for separating or separated families. It provides a structured setting where parents can discuss parenting disputes with the assistance of a neutral third party.
The Family Dispute Resolution Practitioner can help parents:
- Identify the issues in dispute
- Explore possible parenting arrangements
- Consider practical solutions
- Communicate more constructively
- Focus discussions on their child’s safety, wellbeing and needs
The practitioner does not:
- Decide who is right or wrong
- Make parenting orders
- Make legally binding decisions for the parents
- Act as either parent’s lawyer
Parents remain responsible for deciding whether they can reach an agreement.
FDR may help parents resolve some or all of their parenting disputes without asking a judge to determine the outcome. It can also help clarify the issues that remain unresolved if an agreement cannot be reached.
What Is a Section 60I Certificate?
A Section 60I Certificate is a document issued by an appropriately qualified Family Dispute Resolution Practitioner that records the relevant outcome of the FDR process.
Depending on the circumstances, a certificate may record that:
- The parties attended and made a genuine effort to resolve the dispute
- The parties attended but the practitioner was satisfied that a genuine effort was not made
- A party failed to attend because another party refused or failed to attend
- The practitioner considered FDR inappropriate
- The practitioner considered that FDR was unsuitable to continue
The certificate does not determine which parent was right or wrong and does not decide the parenting dispute.
Unless an exemption applies, an applicant will generally need to file a current Section 60I Certificate with an application for parenting orders. If the required certificate or sufficient information supporting an exemption is not provided, the application may be rejected.
A Section 60I Certificate is therefore a record of the FDR process, rather than permission from the practitioner to commence court proceedings.
When Is Mediation Not Required?
Although FDR is generally required before an application for parenting orders, the law recognises circumstances where participating in the process may not be appropriate or possible.
Exemptions may apply in circumstances involving:
- Family violence or risk of family violence: Where family violence or the risk of family violence makes FDR unsafe or inappropriate, an exemption may apply.
- Child abuse or risk of child abuse: An exemption may apply where there are allegations or risks involving child abuse, particularly where requiring FDR could expose a child or parent to further risk.
- Urgent circumstances: An exemption may apply where the matter is urgent and waiting for FDR could create a risk of harm or otherwise prejudice the child or matter. Examples may include urgent recovery or abduction matters and immediate safety concerns.
- Inability to participate effectively: An exemption may apply where a person is unable to participate effectively in FDR, including because of incapacity or significant physical remoteness.
- Certain contravention matters: Specific exemptions may apply to applications concerning serious disregard of a parenting order made within the previous 12 months.
There are also circumstances where a Section 60I Certificate is not required, including certain applications for Consent Orders and circumstances where a person is responding to an existing parenting application.
Whether an exemption applies depends on the circumstances and the type of application. A person claiming an exemption may need to provide an affidavit or other information explaining why FDR was not appropriate or possible.
Intervention or protection orders may also affect whether FDR can safely take place. These situations should be discussed with a qualified family lawyer or the relevant FDR service.
Does Mediation Apply to Property Settlements?
The compulsory FDR requirement under Section 60I applies to parenting matters, not property settlement proceedings.
There is no equivalent statutory requirement to obtain a Section 60I Certificate before commencing property or financial proceedings. However, mediation and other forms of dispute resolution can still be useful when separated couples are trying to resolve financial matters.
FDR services may also assist with some financial and property disputes, depending on the service and circumstances.
If you are dealing with both parenting and property issues, the requirements can be different for each part of your matter. Legal advice can help you understand which dispute resolution processes may apply.
What Happens During Mediation?
Although every FDR service operates differently, the process generally involves several stages.
Initial assessment
Each parent will usually participate in a private intake or assessment before the FDR session.
The practitioner considers whether FDR is appropriate, including:
- Safety concerns
- Family violence
- Power imbalances
- Communication difficulties
- Each person’s ability to participate effectively
The practitioner may determine that FDR should not proceed or that an alternative format is more appropriate.
The FDR session
If the matter proceeds, the parents discuss the issues with the practitioner’s assistance.
Depending on the circumstances, discussions may cover:
- Where children will live
- Time spent with each parent
- School and holiday arrangements
- Communication
- Changeover arrangements
- Travel or relocation
- Special occasions
- Major long-term decisions affecting children
The practitioner helps keep the discussion constructive but does not impose an outcome.
Reaching an agreement
If parents reach an agreement, they can decide how to record their arrangements.
They may use a parenting plan or apply for Consent Orders where legally enforceable arrangements are preferred.
A parenting plan is a written agreement signed and dated by the parents and is generally not enforceable in the same way as a court order.
Consent Orders are orders sought by agreement between the parties. If the Court makes the proposed orders, they have legal effect. The Court must consider the proposed orders before making them and may require further information or changes.
What If the Other Parent Refuses to Attend?
A parent may refuse or fail to attend FDR.
Where this happens, the practitioner may issue a Section 60I Certificate recording the relevant outcome of the process. The certificate may record, for example, that a party failed to attend because another party refused or failed to participate.
If no exemption applies, the certificate may satisfy the pre-filing requirement for an application for parenting orders.
The other parent’s refusal does not automatically determine the outcome of any future court proceedings. The Court will consider the parenting dispute according to the applicable legal framework.
Do You Need a Lawyer Before Mediation?
You are not generally required to have a lawyer participate in FDR. However, obtaining independent legal advice before mediation can help you understand your rights and options.
A lawyer can help you:
- Understand your legal position
- Prepare for FDR discussions
- Consider practical parenting proposals
- Assess proposed arrangements
- Review a parenting plan
- Advise on proposed Consent Orders
- Explain your options if FDR does not resolve the dispute
You can also seek legal advice after FDR to understand the next steps or formalise an agreement where appropriate.
The Bottom Line
For most applications seeking parenting orders, parents must make a genuine effort to participate in Family Dispute Resolution before filing in court, unless an exemption applies.
FDR gives parents an opportunity to discuss parenting issues and work towards their own arrangements with the assistance of an appropriately accredited practitioner. It does not require parents to agree, and it may not be appropriate in every situation.
If family violence, child abuse, urgency, inability to participate effectively or another recognised exception applies, an exemption from the usual FDR requirement may be available. Property settlement proceedings are also not subject to the Section 60I pre-filing requirement.
Knowing whether FDR is required and what options are available can help you determine the appropriate next step for your circumstances.
FAQs
Is mediation compulsory before applying for parenting orders?
In most cases, parents must make a genuine effort to participate in Family Dispute Resolution before applying for parenting orders, unless an exemption applies.
Can I go straight to court if there has been family violence?
An exemption may apply where family violence or the risk of family violence makes FDR inappropriate or unsafe. The specific circumstances and court requirements should be considered before commencing proceedings.
What happens if mediation fails?
An appropriately qualified FDR practitioner may issue a Section 60I Certificate recording the outcome of the FDR process. Where no exemption applies, the certificate will generally need to be filed with an application for parenting orders.
Do property settlement matters require compulsory mediation?
No. The Section 60I requirement applies to parenting applications. While mediation may be useful for property and financial disputes, there is no equivalent statutory requirement to obtain a Section 60I Certificate before commencing property proceedings.
Do I need a lawyer to attend Family Dispute Resolution?
No. You can generally participate in FDR without having a lawyer attend. However, independent legal advice before or after FDR can help you understand your rights, options and any proposed agreement.
Speak With Johnsons Law Group About Family Dispute Resolution
If you are unsure whether mediation is compulsory in your family law matter, obtaining legal advice early can help you understand your obligations and available options. Every family’s circumstances are different, particularly where parenting, safety or property issues are involved.
At Johnsons Law Group, we help clients prepare for Family Dispute Resolution, understand whether the process is appropriate and receive practical legal advice before, during and after mediation. If FDR does not resolve your parenting dispute, we can also advise you about the legal options available.
If you would like advice about mediation, parenting disputes or another family law matter, call us on 02 9600 7277 or visit our Contact Us page to arrange a consultation.
