Family Dispute Resolution/60I Certificate


Family Dispute Resolution (FDR mediation) is a process of negotiating parenting arrangements for children. Parents who wish to commence court proceedings are required to attend mediation prior to commencing court proceedings, unless an exception applies.

An FDR mediation can be initiated by either parent or any other person (for example a grandparent) who is seeking a parenting arrangement for children. FDR mediation can be done through government funded agencies like Relationships Australia and Life Works or through a private mediator.

FDR mediations can be conducted with the assistance of lawyers representing each party or the parties can attend on their own. Mediators are neutral and do not take anyone’s side. The need for solicitors to represent parties only reallu arises when there is a power imbalance between parties. This may be because one party is legally qualified and the other party is not or because one party does not speak English well.

What is the process?

Mediators usually interview each party separately to complete the induction process. During this process, the mediator usually explains their role and the way the mediation will be conducted. If the mediator considers it appropriate, the mediation can take place with both parties being in the same room. Otherwise, it can be conducted by way of “shuttle”,  with each party being in separate rooms for the entire mediation and the mediator going from one room to the other.

At the end of the mediation, if the parties reach a settlement, the mediator will draft a parenting plan. That parenting plan becomes evidence of the parties’ intention for the future parenting of their children. Although parenting plans are not binding, they can be converted into court orders by agreement. If no agreement is reached at the end of the mediation, the mediator will issue a section 60i certificate which allows the parties to start court proceedings.

Legislation

Section 60I (1) of the Family Law Act 1975 requires all parties to a parenting dispute to make a genuine effort to resolve that dispute by attempting family dispute resolution. This step is required prior to any party making an Application to the Court seeking Orders under Part VII of the Family Law Act 1975 and is prescribed in the Family Law Rules 2004 in relation to parties making Applications for parenting Orders in the Family Court of Australia. Upon filing an Application in the Family Court or Federal Circuit Court, a copy of the Section 60I (family dispute resolution certificate) will need to be annexed to the Application.

Section 60I (8) provides that a family dispute resolution practitioner may provide a certificate to the parties to the dispute, indicating any of the following:

  • A party did not attend family dispute resolution due to the other party’s refusal to engage in family dispute resolution;
  • The parties did not attend family dispute resolution as the partitioner did not consider it appropriate in the circumstances (for example, if family violence was prevalent during the parties’ relationship);
  • Both parties attended family dispute resolution and made a genuine effort to resolve the dispute;
  • Both parties attended family dispute resolution, however one party did not make a genuine effort to resolve the dispute;
  • The parties attended family dispute resolution, however the partitioner considered that family dispute resolution was not appropriate to continue in the circumstances.

Exemptions from FDR

Section 60I (9) of the Family Law Act 1975 sets out several exemptions to the requirement that parties attend family dispute resolution. Parties are not required to attend family dispute resolution if the Court has reasonable grounds to believe:

  • The Application is urgent;
  • There has been abuse of a child by one of the parties to the proceedings;
  • There would be a risk of abuse of a child if there were to be a delay in applying for the Order;
  • There has been family violence by one of the parties to the proceedings;
  • There is a risk of family violence by one of the parties to the proceedings;
  • One or more of the parties is unable to participate due to incapacity (for example, physical remoteness).

If a party is eligible for an exemption from undertaking family dispute resolution, that party will need to complete an Affidavit – Non-filing of Family Dispute Resolution Certificate, available on the Family Court of Australia website, setting out the reasons why family dispute resolution cannot be conducted.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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