Updated: Feb 3, 2020
So you have done a bit of research on starting up court proceedings for your family law matter. In your research you often came across resources that discuss attending mediation and the necessity of a Section 60I Certificate before you start proceedings. You may be puzzled as to what exactly is this Section 60I Certificate and why is attending mediation actually mandatory?
The best way to understand Section 60I Certificates is to explain the reason as to their necessity. The Australian family law system is designed in such a way so as to encourage those who are going through family disputes to act as amicable as possible. This means parties can work through and negotiate on their disputes rather than litigate them. This is where the Section 60I Certificate comes into play. Of course, in some instances amicable may not be an option (and the Australian family law system recognises this), in which case you may forgo the requirement of a Section 60I Certificate.
What is a Section 60I Certificate?
An important part about commencing family law proceedings (as with all legal proceedings) is getting the procedure correct and appropriate forms and documents in order. An important prescribed document that you need to file when you commence family law proceedings in either the Federal Circuit Court of Australia or the Family Court of Australia is a mediation certificate, or what is commonly known as the Section 60I Certificate. This Certificate is codified under Section 60I of the Family Law Act 1975 (Cth) which states that if parties have a dispute they must first make a genuine effort to resolve that dispute by attending dispute resolution, and that this requirement must be complied with prior to applying to the Court for orders.
While submitting a Section 60I Certificate as part of a property dispute is not required, obtaining a Section 60I Certificate is mandatory to any application that deals with parenting matters (even if intermixed with property matters). An exception to this rule is possible if the parenting matter must be presented to the Court urgently, without any delays. In such a case you will have to explain to the Court why you have not obtained a Section 60I Certificate, that is you have to give the Court an explanation as to why you and the other party to the proceedings have not attended dispute resolution.
What about family law disputes dealing with financial matters only? While you do not need a section 60I Certificate, you still have to make a genuine effort to resolve your dispute. This is commonly done via direct negotiations between the parties or the parties’ solicitors. These negotiations can be on a “without prejudice” basis which means the contents in those negotiations cannot be used against a party if the matter proceeds to Court. Mediation is another option for you to resolve your dispute which can also be very cost-effective in the long run.
If proceedings have already commenced, it is likely that you will be ordered by the Court to attend a conciliation conference before a Registrar of the Court or a private mediation regardless of whether you have attempted this in the past. As court proceedings are lengthy and tend to take up much of the Court’s time and resources, the Court is intent on the parties making genuine efforts in settling financial disputes.
What do I have to do to obtain a Section 60I Certificate?
In order to obtain a Section 60I Certificate you and the other party with whom you are in dispute will have to attend dispute resolution and you have to make a genuine effort to try and resolve your dispute. This means that you will have to talk about your dispute and try to come to an agreement about how you will resolve your dispute.
Dispute resolution can take many forms although in family law it is primarily done by ways of mediation where a third impartial party (a mediator) will assist the parties in dispute with their negotiations.After the conclusion of the dispute resolution, the dispute resolution practitioner will issue a Section 60I Certificate stating whether the parties refused or failed to attend dispute resolution and whether they made a genuine effort to resolve the dispute.
Domestic Violence and the Section 60I Certificate
While obtaining a Section 60I Certificate is mandatory for all parenting applications, you do not have to attend dispute resolution or mediation, if:
there is an Apprehended Domestic Violence Order (“AVDO” or “AVO”) in place;
you have safety concerns;
there are allegations of family violence;
there are allegations of child abuse.
In this case you may be excused from attending dispute resolution and a Section 60I Certificate will still be issued although it will be noted that in consideration of your circumstances attending dispute resolution is deemed inappropriate.
This of course does not prevent you from attending dispute resolution if you still choose to do so. However it is advisable that you check any current AVOs whether there are any restrictions preventing you from doing so. This is very important as you may be at risk of breaching a condition of an AVO which may be a criminal offence. You should also check with the dispute resolution practitioner whether they are in a position to make alternative arrangements such as conducting the dispute resolution mediation as a shuttle conference (where each party is in a separate room) or via telephone.
The family law system in Australia is subject to much criticism - some of it well deserved. To some a section 60I Certificate may seem just one extra unnecessary barrier to access justice. However, imposing on parties the obligation to first obtain a section 60I Certificate before going to court is a vital mechanism to ensure that the Family Courts are not overburdened with matters that could be settled under mediation.
In the vast majority of cases, it is in everybody’s best interest (and your wallet) to attempt to settle a family dispute prior to starting court action. That is why mediation is such an important part of any family law dispute and you should seek legal advice well before jumping head first into court action. Our experienced family law solicitors in Newcastle can help you with any custody and divorce questions you may have. Contact us today on (02) 8005 8025.