Separation is hard enough without a court fight. When parents disagree about their children, the law in Australia asks them to try talking first. That step is called family dispute resolution, or FDR.
Most parents who want parenting orders from a court must show they made a genuine effort at FDR before they file. This post explains how the process works, what a section 60I certificate is and when an exemption may apply. It is general information for parents in any state or territory.
What family dispute resolution is
FDR is a form of mediation run by an independent practitioner. It is used for disputes about children, such as where they will live and how much time they spend with each parent. The practitioner helps both people look at their options and work toward an agreement. Disputes often involve questions of shared or sole parental responsibility as well.
It is not a court hearing. Nobody is asked to prove their case to a judge. The aim is to see whether the parents can reach their own arrangements without litigation.
The rule before parenting matters go to court
The Family Law Act 1975 requires separating parents to make a genuine effort to resolve disputes about children through FDR before applying to court, unless an exception applies. The Federal Circuit and Family Court of Australia explains this requirement on its family dispute resolution information page. The rule applies to most, but not all, parenting applications.
The Attorney-General’s Department adds that the requirement also covers applications to change an existing parenting order. So it is more than a first step after separation. It can come up again years later if the arrangements need to change. Parents with an older order should keep that in mind.
Who can run family dispute resolution
FDR must be run by an accredited practitioner. You can find them on the Family Dispute Resolution Register. There are two main options.
- Practitioners at government funded services, such as a Family Relationship Centre.
- Private practitioners, who are accredited by the Attorney-General’s Department.
The Attorney-General’s Department page on family dispute resolution sets out these options. It also says complaints about a practitioner should go to that practitioner first. You can check a practitioner’s accreditation before you book.
What a section 60I certificate is
A section 60I certificate is the proof that you tried FDR. It is issued under section 60I of the Family Law Act. Unless an exemption applies, you must file a valid certificate from an accredited practitioner with your application for parenting orders. The court says the certificate is valid for 12 months. A practitioner can issue one in several situations:
- One party refused to attend.
- The practitioner decided FDR was not appropriate.
- FDR was attempted but no agreement was reached.
- One party did not genuinely take part.
- FDR started, but the practitioner decided to stop.
This means a parent is not stuck just because the other parent will not attend. If you made the effort, the practitioner can record what happened. The certificate then goes with your court application.
What happens if you reach an agreement
If the parents agree, a certificate is usually not issued. Legal Aid NSW notes that you must try mediation again if you later want parenting orders, unless an exemption applies. The agreement itself can take different forms. Many parents weigh up the best interests of the child as they talk it through.
You can write it up as a parenting plan. Or you can apply to the court for consent orders, which makes the arrangements binding. The court describes both paths on its information page. Your lawyer can explain which suits your situation.
When a certificate is not needed
The certificate rule applies to parenting applications. The court lists several matters where it is not needed. These include applications for financial or property orders only, consent orders and child support matters.
Other situations have their own rules, such as applications for interim orders. The details are technical and can change. Check the court’s current guidance or speak with a lawyer before you file.
Exemptions from the requirement
Sometimes FDR is not suitable or not possible. In those cases a parent may ask for an exemption from the certificate rule. The court lists these grounds for an exemption:
- The matter is urgent.
- There are reasonable grounds to believe there has been child abuse or family violence, or that there is a risk of it. This includes cases where delay would create a risk.
- One or both parties cannot take part effectively, for example because of incapacity or because they live too far from a provider.
- There is an alleged breach of a parenting order, less than 12 months old, that shows serious disregard for its obligations.
To rely on an exemption, you file an affidavit explaining why you could not file a certificate. If the exemption is refused, a Registrar can reject the parenting application. You would then need to meet the section 60I requirements before filing again.
If you file neither a certificate nor an exemption affidavit, the court says it cannot accept your application. The case cannot progress. For that reason, it pays to sort out the certificate question before you file.
Family violence and child abuse
Safety comes first. If you are claiming the family violence or child abuse exemption, you may need to get information about available services and options. This can come from a family counsellor or an FDR practitioner. The court states that this does not mean you must attend FDR.
In most cases you also have to give written acknowledgment that you received the information. A lawyer or a specialist support service can explain how this works in your state or territory. Processes can differ, so get advice that fits where you live.
Acting reasonably before court
Legal Aid NSW says parents are expected to act reasonably and responsibly in the steps before court. They should not use those steps to upset or delay the other person. They must also share important information as the matter goes on.
If the court finds the steps were not followed, it may pause the application. It may also order costs against the party who did not comply. That is one more reason to take FDR seriously.
Older children often have views of their own. Parents sometimes ask about where an older child lives and how much say the child has. A lawyer can explain how the law treats that question.
Frequently asked questions
How long does a section 60I certificate last?
The Federal Circuit and Family Court of Australia says it is valid for 12 months. After that, you may need to try FDR again. Check the date on your certificate before you file.
What if the other parent will not come to FDR?
A practitioner can issue a certificate if one party refused to attend. You can then file it with your court application. The court still expects you to have made a genuine effort.
Do I need a certificate for a property settlement?
No. The court lists applications for financial or property orders only as matters that do not need a certificate. Any parenting orders sought in the same case are treated differently.
Can I skip FDR if there is family violence?
An exemption may be available where there are reasonable grounds to believe family violence or child abuse has occurred or is a risk. You file an affidavit explaining your reasons. A lawyer can help you prepare it.
This article is general information only and is not legal advice. Family law rules and processes differ between states and territories and they change over time. Please speak with a qualified family lawyer about your situation.
