When parents separate, one of the first questions is whether they must attend mediation before going to court. In New South Wales, yes. Family Dispute Resolution (FDR) is mandatory before filing a parenting application in court.
However, there are important exceptions, procedural requirements, and safety considerations that can impact your situation.
This article explains when Family Dispute Resolution is required, what a section 60I certificate is, when exemptions apply, and how the 2024 changes to family law affect parenting disputes.
What Is Family Dispute Resolution?
Family Dispute Resolution (FDR) is a structured mediation process conducted by an accredited Family Dispute Resolution Practitioner (FDRP). It is designed to help separating parents resolve disputes about children without court intervention.
Under Part II, Division 3 of the Family Law Act 1975, FDR is defined as a process in which an independent practitioner assists people to resolve disputes arising from separation or divorce. An FDR practitioner:
- Facilitates discussion between parents
- Encourages negotiation
- Helps clarify issues
- Does not give legal advice
- Cannot impose a decision
The Federal Circuit and Family Court of Australia (FCFCOA) expect parties to make a genuine effort to resolve disputes before commencing litigation, if it is safe to do so.
Is Family Dispute Resolution Mandatory in NSW?
For parenting disputes, the requirement is governed by section 60I of the Family Law Act.
If you are applying to the Court for parenting orders under Part VII of the Act, you must:
- Attempt Family Dispute Resolution; and
- Obtain a section 60I certificate from an accredited FDR practitioner, unless you qualify for an exemption.
Without this certificate (or a valid exemption), the Court will not accept your parenting application.
This requirement applies across Australia, including NSW, because parenting law is federal.
What Is a Section 60I Certificate?
A section 60I certificate is a formal document issued by an accredited FDR practitioner at the conclusion of mediation. It confirms one of the following:
- Both parties attended and made a genuine effort
- Both parties attended but one or both did not make a genuine effort
- One party refused or failed to attend
- The matter was inappropriate for FDR
- The FDR practitioner considered the matter unsuitable
The certificate must be filed with your Initiating Application when seeking parenting orders in the Federal Circuit and Family Court of Australia.
There can also be cost consequences if a party fails to make a genuine effort at FDR.
When Is FDR Not Mandatory? (Exemptions)
The Family Law Act recognises that mediation is not appropriate in every case.
Under section 60I (9), exemptions may apply in circumstances including:
- Family violence or child abuse
- Risk of harm to a child
- Urgency (for example, relocation or recovery matters)
- Inability to locate the other parent
- Previous FDR attempted within the last 12 months
- Contravention applications in certain circumstances
The exemption must be properly documented in your court documents, and the Court may require evidence supporting the exemption claim.
Importantly, even where an exemption applies, the Court still encourages dispute resolution where safe.
Parenting Law Changes in 2024: Why Safety Matters More Than Ever
On 6 May 2024, amendments to the Family Law Act 1975 (Cth) came into effect. The Court’s approach to determining what is in a child’s best interests was refined, with a clearer and more direct emphasis on safety. The Court must now consider:
- The safety of the child and carers
- Any history of family violence, abuse or neglect
- The child’s views
- The child’s developmental, psychological and emotional needs
- Each parent’s capacity to meet those needs
- The benefit of relationships with significant people, where safe
This change reinforces that FDR must only occur where it is safe and appropriate. If there are genuine concerns about family violence, coercive control or risk to a child, mediation may be unsuitable.
What Happens If You Reach Agreement in Mediation?
If parents reach agreement in FDR, they have several options:
- Enter a parenting plan (not legally enforceable); or
- Apply for Consent Orders, which are legally binding and enforceable.
It is important to understand that a parenting plan is not automatically enforceable. If the other parent breaches the agreement, enforcement options are limited.
By contrast, a parenting order made by the Court can attract serious consequences for non-compliance, including fines or, in extreme cases, imprisonment.
Legal Aid NSW provides guidance on enforcing parenting arrangements and the consequences of breaching court orders.
What If Mediation Fails?
If mediation does not result in agreement:
- The FDR practitioner issues a section 60I certificate.
- You may then file an application for parenting orders.
- The Court may still direct parties to further dispute resolution during proceedings.
The obligation to consider dispute resolution does not end once proceedings commence. The Court expects ongoing efforts to resolve disputes wherever possible.
Does FDR Apply to Property Matters?
The section 60I certificate requirement specifically applies to parenting disputes.
However, the Court also expects parties in property disputes to attempt genuine negotiation and comply with Pre-Action Procedures before filing proceedings.
In financial matters, conciliation conferences and mediation are commonly used, even after proceedings begin.
Where Can You Attend Family Dispute Resolution in NSW?
Parents in NSW can attend:
- Community-based Family Relationship Centres (government subsidised)
- Private accredited FDR practitioners
- Court-based FDR conducted by judicial registrars
- Law firm mediation services
At Ramsden Family Law, we provide clients the best possible representation:
- In-person mediation at our Sydney CBD mediation rooms
- Shuttle mediation for safety concerns
- Online mediation
- Accredited Family Dispute Resolution Practitioners
- Section 60I certificates where appropriate
Our mediation rooms are purpose-built to provide a neutral, confidential and practical environment for alternative dispute resolution.
Why Early Legal Advice Matters
Even though FDR is mandatory in most parenting matters, attending mediation without understanding your legal position can be risky. Acquiring early legal advice helps you understand:
- Whether an exemption applies to you
- What a “genuine effort” requires
- What a court is likely to consider in your child’s best interests
- Whether a parenting plan is sufficient, or Consent Orders are preferable
- How to protect yourself if there are safety concerns
A strategic approach at the beginning can prevent procedural delays and protect your position later.
Read: How Long After Mediation Can You Go To Court?
Book a Consultation
If you are considering applying for parenting orders in NSW, it is important to understand whether Family Dispute Resolution is required in your circumstances.
Ramsden Family Law is a specialist family law firm with offices in Sydney, Brisbane, Gold Coast and Melbourne who offer a smarter perspective on your case. Why speak to us?
- Specialist team – 15 family lawyers (including 7 Law Society Accredited Specialist Family Lawyers, which sets us apart from most other law firms)
- Transparent fees – Fixed fees available and upfront cost estimates
- Quick turnaround – Dedicated support team to keep your matter progressing
- Resolution-focused – We explore all options to resolve your case without court, where possible
Book your free 30-minute consultation. You can call 1300 749 709 or email [email protected] if you are ready to get started.
Learn more about our innovation, trust, and expertise in family mediation and why we are one of the top family law firms. Our experienced lawyers will explore all options to resolve your case without court intervention if possible.
Frequently Asked Questions
Can I go straight to court for parenting orders in NSW?
Usually no. You must attempt Family Dispute Resolution and obtain a section 60I certificate unless an exemption applies.
What if the other parent refuses to attend mediation?
The FDR practitioner may issue a certificate confirming non-attendance. You can then file your parenting application.
Is mediation confidential?
Yes, subject to limited exceptions (such as risk disclosures). Communications are generally inadmissible in court.
Is Family Dispute Resolution free?
Some community-based services are government subsidised. Private practitioners charge professional fees.
