Mediation Before Court – Is It Mandatory?

October 24, 2022

Reaching an Agreement

Family Dispute Resolution (FDR) is a type of mediation for separating families to try and reach a resolution to their disagreements and prepare for the future without having to go to court. This is a compulsory pre-court procedure.

FDR is facilitated by an independent and registered practitioner, known as a Family Dispute Resolution Practitioner. 

If an agreement is reached at FDR, the parties may enter into a parenting plan, which is an agreement on living arrangements for their children and how they will share parenting after separation. Conflicts over child support and other costs may also be resolved.

Another possible outcome after successfully reaching an agreement at FDR is filing an Application for Consent Orders. This Application is filed in the court and ensures that the agreement reached is then turned into binding court orders. 

When an Agreement cannot be reached

When an Agreement cannot be reached, the Family Dispute Resolution Practitioner will issue the parties with what is called a “section 60I certificate”. This certificate is essentially your ticket to court.

Section 60I certificates can be issued in the following circumstances:

• One party refused to attend FDR;
• The Family Dispute Resolution Practitioner deemed the matter inappropriate for Family Dispute Resolution;
• Both parties attended FDR, made a genuine effort to resolve the dispute and could not reach an agreement;
• Both parties attended FDR but one party did not make a genuine; or
• During the FDR process, the FDR practitioner determined that it was not appropriate for the matter to continue.

The section 60I certificate must be filed with the court alongside an application for a parenting order. In certain circumstances, the court may grant an exemption from the requirement to file the certificate, under section 60I(9) of the Family Law Act.

These exemptions apply in the following circumstances:

• The matter is urgent;
• If the Court is satisfied on reasonable ground that there has been child abuse and/or family violence by a party, there is a risk of family violence, or a risk of child abuse if there were to be delays in applying to the Court;
• Where one party cannot participate in FDR; and
• If an application related to a contravention of an existing order made within the last 12 months.