The Family Law Act generally requires you to attempt to resolve a dispute regarding the parenting arrangements for your children through a family dispute resolution conference before you can apply to the court for orders. Most parties will engage in mediation as a form of family dispute resolution.

The aim of this is to encourage parties to attempt to resolve their dispute quickly, amicably, and outside of court, if possible. If successful, mediation can limit parties’ costs and prevent the need to start court proceedings. Even if an agreement cannot be reached at mediation, parties can often refine the issues in dispute prior to filing for parenting orders in court, which can reduce the cost and time involved in litigation.

You must obtain a certificate (known as a section 60I certificate) from a registered family dispute resolution practitioner (FDRP), except in certain situations, before you can file an application in court for an order regarding the arrangements for your children.

What is a section 60I certificate?

A section 60I certificate is issued by a FDRP after parties have, or have not, participated in mediation and whether or not they have been able to reach agreement. Section 60I certificates can be issued in the following circumstances:

• - one party refused to attend the mediation;
• - mediation was considered by the FDRP to be inappropriate in the circumstances;
• - both parties attended mediation and made a genuine effort to resolve the dispute;
• - both parties attended mediation but one did not make a genuine effort to resolve the dispute; or
• - both parties attended mediation but the FDRP considered it inappropriate to continue.

In limited circumstances a party may be exempt from being required to provide a section 60I certificate to the court. Such circumstances include where the matter is deemed as being urgent or if there is abuse and/or family violence. Evidence of this needs to be given to the court at the time the exemption is sought.

What if mediation is not successful?

Ideally, parties will be able to reach agreement at mediation as to the parenting arrangements for their children moving forward, and these will be formalised by way of parenting plan or consent orders.

However, if mediation is not successful and agreement is not reached on all issues, you may need to file an application in the Federal Circuit and Family Court of Australia for a parenting order. Unless exempt, you will be required to file a section 60I certificate at this time with your application.

Before you can apply to the court, you will need to write to the other party notifying them of your intention to start court proceedings and include the following:

• - the issues in dispute;
• - the orders you will seek if you file an application in the court;
• - a genuine offer to resolve the issues in dispute (if appropriate); and
• - a timeframe within which the other party must reply (this must be at least 14 days from the date of the letter).

If the other party does not respond within the timeframe specified, your obligation to follow the pre-action procedure ends and you can make an application to the court.

If the other party does respond to the notice of intention within the timeframe provided, that response must be in writing and state whether the offer is accepted. If an agreement is not reached, the other party must also write back with the following:

• - the issues in dispute;
• - the orders they will seek if they file an application;
• - a genuine counteroffer to resolve the issues in dispute; and
• - a timeframe within which the other party must reply (this must be at least 14 days from the date of the letter).

If the parties have made reasonable attempts to resolve the dispute through these negotiations and are unable to resolve the dispute, they can file an application in the court.

For further information about mediation and section 60I certificates, the procedures you must undertake before making an application to the court for parenting orders, or what happens after you have made an application, contact our team of experienced family lawyers on 1300 032 806 or at [email protected] to arrange an initial confidential appointment.