Section 60I certificate: Under Australia’s Family Law Act 1975 if separating parents can’t agree on parenting arrangements and wish to go to court to have their issues decided by a judge, they have to first attend compulsory mediation. Mediation takes place with an accredited Family Dispute Resolution (FDR) practitioner, aka the mediator. It’s aimed at keeping as many families as possible out of the troubled court system by helping them to settle matters without litigation. Before a Court can make Orders about parenting, it needs to be satisfied that one or both of the parents have attempted mediation, which is filed at the time of filing an Application in Court. After you have attended mediation, or if you have attempted to participate in mediation but the other side has refused to participate, then the mediator can issue a certificate, formally called a section 60I certificate, confirming your participation or attempt to participate. Here is a rundown of what you should bear in mind about mediation and Section 60I certificates.
The process to obtain a Section 60I certificate
Before mediation occurs, practitioners conduct a thorough assessment of both parties to ascertain if the process is going to be appropriate. The screening and assessment process also ensures family members’ needs are identified. Safety concerns can also be identified and managed at this stage.
Once mediation has been attempted, if the issues remain unresolved and the matter is to proceed to litigation, a Section 60I certificate will be issued. Only accredited FDR practitioners can issue these. The certificate is then filed at the same time as the court application.
Time limits and Section 60I certificates
You can only obtain a Section 60I certificate within 12 months of your last attempt to attend mediation. Similarly, you can only file a certificate that was issued within 12 months of the last attempt at mediation. The reason behind having this time limit is the fact that the issues being disputed, as well as the attitudes of the parties, are likely to change over time and so another, later attempt at mediation may be successful.
Types of Section 60I certificates
There are several types of Section 60I certificate that can be issued. These fall into the following categories:
- You did not attend mediation but this was due to the refusal or failure of the other person or people to attend.
- You did not attend mediation because the practitioner did not consider it would be appropriate to conduct mediation.
- You attended mediation, conducted by the practitioner, and all parties made a genuine effort to resolve the issue or issues in dispute.
- You attended mediation, conducted by the practitioner, but one or more parties did not make a genuine effort to resolve the issue or issues in dispute.
- You began FDR, but during the process, the practitioner decided it was not appropriate to continue
It’s up to the professional judgement of an FDR practitioner to issue the certificate in the category they feel is most appropriate for a particular case. Note that the mediator isn’t required to provide any supporting information or explain why they issued a particular certificate. They also can’t change the wording on the certificates, nor can they record any comments on it.
(Note also that Western Australia has its own specific type of certificate.)
“Genuine effort” certificate
A genuine effort means that the parties really did try, in good faith, to resolve their issues at the mediation. It can’t be just a show or going through the motions—it needs to present as real, honest and not tokenistic. You might like to read our previous blog for more information on what constitutes a “genuine effort”.
It’s important to remember though that whether or not you and your ex are successful at resolving your issues at the mediation does not influence the decision of the mediator as to whether or not you have made a genuine effort.
“Non-genuine effort” certificate
Parties typically have very strong views about how to resolve the issues in dispute, but positions shouldn’t be intractable. You still have to at least attempt to genuinely resolve your issues at mediation. If you are staunchly unwilling to compromise in any way at all, thereby rendering the mediation fruitless, then the practitioner may well issue a “non genuine effort” certificate. Again, it’s a judgment call on the part of the practitioner. And again, simply failing to resolve your issues does not necessarily mean that you did not make a genuine effort.
“Failure to attend” certificate
It’s really important to attend mediation as failure to attend or to make a genuine effort means in future litigation, a court may award costs against you as a consequence.
If someone’s refusal to attend the mediation is due to financial circumstances despite their apparent genuine willingness to attend the mediation, the practitioner can use their discretion as to whether to issue a “failure to attend” certificate. The person may still claim an exception (see below).
There may well be genuine reasons why someone can’t attend mediation. But if the practitioner suspects someone is strategically using delay as a tactic, the practitioner might decide to issue a “failure to attend” Section 60I certificate.
“Not appropriate” certificate
Again, it’s a matter of the professional judgment of the practitioner to issue a certificate that the FDR is not appropriate. This often occurs in situations where family violence is a factor. If a practitioner becomes aware during the mediation that family violence is relevant, they can decide to issue a “not appropriate” certificate. It may be that during the intake process, it wasn’t immediately apparent that a history of violence is going to impact the ability of the parties to negotiate. But that may become apparent to the practitioner during the mediation and the practitioner may then stop the process and issue a “not appropriate” certificate, on which it is only indicated that FDR is inappropriate (no reasons are required to be given).
What if you are unhappy with the type of Section 60I certificate issued?
- You can choose to attend further mediation with a different practitioner. Multiple certificates can be issued in relation to one dispute.
- You can also make an application to a court to resolve your dispute.
- FDR practitioners also have a complaints mechanism in relation to the services they provide.
There are some, very limited reasons where a court may accept an application for parenting matters without a Section 60I certificate. These are contained in Section 60I(9) of the Family Law Act and include:
- When someone is applying for consent orders;
- Matters involving urgency;
- If a court has reasonable grounds to believe that family violence or child abuse has occurred;
- If the delay caused by attending mediation would involve a risk of violence or child abuse;
- If it is not practical for someone to participate in mediation, for reasons such as incapacity, physical remoteness or some other reason;
- If a party has contravened and shown a serious disregard for a court order made in the last 12 months.
The Family Law Act does not define what an “urgent” matter or what “serious disregard” is. This is up to the discretion of the court.
How do you claim an exception?
The person making the application to court claims the exception; it’s not necessary for the person filing the response to an application to claim an exception. If you and your ex are making a joint application for consent orders, then you are not required to file a Section 60I certificate at all.
You can claim an exception at the time of making the application for a parenting order by advising court staff. The court staff will instruct what documentation and supporting material is required.
However, the court may decide not to accept that an exception applies. Instead, the court may make an order for people to attend mediation before the application is accepted or heard, and then it’s back to square one.
An important point to note also is that if an application is being made in relation to contravention of a parenting order, there is no need to first attend mediation or obtain a Section 60I certificate provided you are filing a contravention application within 12 months of the court orders being made.
What if you can’t find or contact your ex?
If you have no way to contacting or finding your ex partner, you can make an application to the court relying on the exception that a party to the proceeding is unable to effectively participate. Alternatively, it’s up to the discretion of the mediator to decide whether it would be more appropriate to issue a “not appropriate to conduct FDR” certificate. Finally, note that communications with mediators are not admissible in court proceedings, except in cases of child abuse where the court can’t obtain the information in other ways.
Finding a mediator/FDR practitioner
Find a Family Dispute Resolution Centre or a list of registered Family Dispute Resolution Providers by visiting the Family Relationships website.
For help with issues around mediation of parenting matters and section 60I certificates or any other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blog is not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.