Do You Have to Mediate Before Going to Court?
FAMILY DISPUTE RESOLUTION AND THE SECTION 60I CERTIFICATE
Separation is hard enough. The court battle does not have to be
the part your children remember.
In Australia, before most parenting disputes reach a courtroom,
the law asks you to sit down and genuinely talk first.
The way out of a dispute does not have to run through a courtroom | Source: Pexels
When a relationship ends, every next step drains emotions and money at the same time. Many people assume the next stop after separation is a courtroom. Australian family law is built on the opposite assumption: court is the last resort, not the first. The mechanism that does the "talk first" work is Family Dispute Resolution, or FDR. This article covers three things: when mediation is required, how the process actually works, and when you can go straight to court.
01／What Family Dispute Resolution actually is
FDR is a structured form of mediation conducted by an accredited Family Dispute Resolution Practitioner (FDRP). It deals mainly with post-separation arrangements for children: where a child lives, the time spent with each parent, and who makes the major decisions. In some cases it can also be used for property and financial matters.
Its character is fundamentally different from litigation. Mediation does not ask who was right and who was wrong. It brings both parties back to the same table, works out where the real disagreements lie, and explores practical, child-focused options. The practitioner keeps the conversation moving but never makes the decision for you: the final arrangement is one the parents reach themselves.
02／The section 60I certificate: your ticket into court
Under s 60I of the Family Law Act 1975 (Cth), in most parenting disputes the parties must make a genuine effort to resolve the matter through FDR before applying to the court for parenting orders, and must obtain a section 60I certificate from an accredited practitioner.
The effect of s 60I(7) is blunt: without a certificate on file, the court must not hear an application for parenting orders, unless a statutory exemption applies.
THE FIVE KINDS OF 60I CERTIFICATE
Both attended and made a genuine effort
Both attended, but one or both made no genuine effort
The practitioner considered the matter unsuitable for FDR
One party refused or failed to attend
FDR began but was not completed
The certificate does not judge the merits. It simply records what happened at mediation. But the judge can see which kind of certificate you hold: a "no genuine effort" or "refused to attend" certificate will follow you into later decisions about case management and costs. Note the time limit as well: as a general rule, your most recent attendance, or attempted attendance, at FDR in relation to the issues you are bringing to court must have occurred within the past 12 months. Beyond that window, you will usually need to attempt FDR again to obtain a fresh certificate for the application.
03／When you can go straight to court
The law also recognises that not every family belongs at a mediation table. A party can rely on an exemption and file directly with the court where: the court is satisfied there are reasonable grounds to believe there has been family violence or child abuse, or that there is a risk of it; the matter is urgent and needs immediate court intervention; a party is unable to participate effectively (for example, through incapacity or impracticability); the application concerns certain contraventions of existing court orders; or the parties have already reached agreement and are jointly applying for consent orders.
Property and financial disputes run on different rules. Unlike most parenting proceedings, a property or financial application does not generally require a section 60I certificate. That said, parties are generally still expected to comply with the applicable pre-action procedures before litigating, including exchanging relevant information and giving genuine consideration to resolving the dispute through negotiation or another form of dispute resolution. Since 10 June 2025, the Family Law Act 1975 (Cth) has also expressly set out the duty of financial disclosure in property and financial cases. Compliance with these obligations and the pre-action procedures may also bear on case management and costs.
The exemptions are an exit for those who genuinely need one, not a shortcut around the negotiating table. Whether you qualify, and whether you should use one, are both worth thinking through before you act.
A table is easier to sit down at than a courtroom | Source: Pexels
04／What happens in the mediation room
FDR takes place in a structured but informal setting. The parties can talk in the same room; where face-to-face contact is too difficult, or there are safety concerns, they can sit in separate rooms while the practitioner moves between them, an approach known as "shuttle mediation".
Throughout the process, the practitioner facilitates the conversation, makes sure each party has the chance to voice their concerns and priorities, and helps map out workable options around the needs of the children. The practitioner never hands down a ruling and never takes sides.
What is said in FDR is confidential and generally cannot be used as evidence in later court proceedings (ss 10H and 10J of the Act), subject to narrow exceptions, most importantly information going to the safety of a child. The point of that protection is to let both sides speak freely, without weighing every sentence as a potential exhibit.
If agreement is reached, it can be recorded as a parenting plan, or taken a step further and formalised into Consent Orders. The two carry different weight: a parenting plan records consensus but is not enforceable in its own right, while consent orders, once approved by the court, have the same force as orders made by a judge. Which one suits you depends on the level of trust between the parties and how complex the arrangements are.
05／Three reasons to take FDR seriously
First, it genuinely saves money, time, and the relationship. Compared with litigation, mediation is cheaper, faster, and far less adversarial, and the outcome stays in your hands. A judge can only choose within the legal framework; parents can design arrangements that actually fit their family's schedule and way of life.
Second, refusing FDR, or treating it as a formality, can carry procedural and costs consequences. In matters where the section 60I regime applies, if the practitioner issues a certificate recording that a party did not make a genuine effort, the court may require the parties to attend FDR again in later proceedings, and may take that factor into account when deciding questions of costs. Attending FDR should never be treated as just a box to tick.
Third, strategically, mediation is not always the right answer. Where there are safety concerns, or the other party has a history of ignoring agreements, relying on an exemption and going directly to court may be the better course. These judgments turn heavily on the facts, and are worth taking professional advice on before you make the first move.
An agreement only counts once it is on paper | Source: Pexels
Children will not remember who won the case.
They will remember how their parents handled the separation.
The best parenting arrangements are not handed down. They are worked out.
Sun Lawyers · Sydney Office
If you are going through a separation and need guidance on the mediation process, obtaining a section 60I certificate, or whether an exemption applies to your circumstances, contact Sun Lawyers. We work in both English and Mandarin.
Phone: 02 9267 4988 ｜ Email: enquiry@sunlaws.com
Sydney Office: Suite 703 & 704, 265 Castlereagh Street, Sydney NSW 2000
Website: sunlaws.com.au
This article is general legal information only and is not legal advice.
Please contact us for advice specific to your situation.